SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
Execution Version
This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of December 2, 2024, by and among Senti Biosciences,
Inc., a Delaware corporation (the “Company”), and each of the entities listed on Exhibit A attached to this Agreement (each, an “Investor” and together, the “Investors”).
WHEREAS, the Company and the Investors are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act (as defined below) and Rule 506 of Regulation D promulgated under the Securities Act;
WHEREAS, the Company desires to sell to the Investors, and each Investor desires to purchase
from the Company, severally and not jointly, upon the terms and subject to the conditions stated in this Agreement, (A) shares of the Company’s Series A convertible preferred stock, par value $0.0001 per share (the “Series
A Preferred Stock”), and accompanying (B) warrants to purchase shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) substantially in the form attached hereto as Exhibit
B (the “Warrants”);
WHEREAS, contemporaneously with the sale of the shares of Series A Preferred Stock and the
Warrants, the parties hereto will execute and deliver a Registration Rights Agreement (as defined below), substantially in the form attached hereto as Exhibit C, pursuant to which the Company will agree to provide certain registration
rights in respect of the shares of Common Stock issuable upon the conversion of the Series A Preferred Stock (the “Conversion Shares”) and the Warrant Shares (as defined below in Section 3.4) under the
Securities Act and applicable state securities laws; and
WHEREAS, pursuant to this Agreement and the Certificate of Designation of Preferences, Rights
and Limitations of Series A Convertible Preferred Stock, substantially in the form attached hereto as Exhibit D (the “Certificate of Designation”), each share of Series A Preferred Stock is
convertible into Conversion Shares (such Conversion Shares, together with the shares of Series A Preferred Stock, Warrants and Warrant Shares, the “Securities”).
NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and
covenants herein contained, the Company and each Investor, severally and not jointly, agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings:
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediates, controls, is controlled by or
is under common control with such Person.
“Agreement” has the meaning set forth in the recitals.
“Amended and Restated Bylaws” means the Bylaws of the Company, as currently in effect.
“Amended and Restated Certificate of Incorporation” means the Second Amended and Restated Certificate of Incorporation of the Company, as amended to date and
as currently in effect.
“Antitakeover Provisions” means the provisions of any stockholder rights plan or agreement, “poison pill” or substantially similar anti-takeover agreement or
any “business combination”, “control share acquisition”, “fair price”, “moratorium” or similar anti-takeover provision under the Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws, or applicable law (including Section
203 of the DGCL).
“Benefit Plan” or “Benefit Plans” means employee benefit plans as defined in Section 3(3) of ERISA and all other
employee benefit practices or arrangements, including, without limitation, any such practices or arrangements providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus
pay, incentive pay, stock options or other stock-based compensation, hospitalization insurance, medical insurance, life insurance, scholarships or tuition reimbursements, maintained by the Company or to which the Company or any of its subsidiaries is
obligated to contribute for employees or former employees of the Company and its subsidiaries.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“Celadon Investor” means Celadon Partners SPV 24.
“Certificate of Designation” has the meaning set forth in the recitals.
“Closing” has the meaning set forth in Section 2.2.
“Closing Date” has the meaning set forth in Section 2.2.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Stock” has the meaning set forth in the recitals.
“Common Stock Equivalents” means any securities of the Company that would entitle the holder thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” has the meaning set forth in the recitals.
“Confidential Data” has the meaning set forth in Section 3.38.
2
“Confidential Information” means non-public information regarding the Company or its subsidiaries furnished by or on behalf of the Company, directly or
indirectly, to an Investor or its Representatives, together with all analyses, compilations, forecasts, studies or other documents prepared by the Investor or its Representatives which contain such information. “Confidential Information” shall not
include such portions of the Confidential Information that (a) are or become generally available to the public other than as a result of such Investor’s disclosure in violation of this Agreement, (b) become available to the Investor or its Affiliates
on a non-confidential basis from a source other than the Company or its subsidiaries, (c) were already in the Investor’s or its Representatives’ possession prior to the date on which such information was provided by or on behalf of the Company or (d)
are independently developed by the Investor or its Affiliates or Representatives without use of or reference to the Confidential Information.
“Contract” has the meaning set forth in Section 3.2(b).
“Conversion Shares” has the meaning set forth in the recitals.
“Designation Agreement” has the meaning set forth in Section 5.3.
“Disclosure Document” has the meaning set forth in Section 5.5.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disqualification Event” has the meaning set forth in Sections 3.34 and 4.14.
“Drug Regulatory Agency” means the U.S. Food and Drug Administration (“FDA”) or other foreign, state, local or
comparable governmental authority responsible for regulation of the research, development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of drug or biological products
and drug or biological product candidates.
“Environmental Laws” has the meaning set forth in Section 3.18.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock, options to purchase shares of Common Stock, or other equity awards exercisable, convertible
or exchangeable for shares of Common Stock to employees, officers, directors or consultants of the Company pursuant to any stock-based compensation plans in effect on the date hereof and duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company; provided that the issuance of any such securities to any
consultant (i) are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 5.13
herein or (ii) are subject to a written lock-up agreement for the term of prohibition period in Section 6.2(g) herein; (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such
securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities; (c) shares of Common Stock pursuant to the
Amended and Restated Common Stock Purchase Agreement, dated as of July 6, 2024 (as amended, restated or otherwise modified up to the date hereof), between the Company and Chardan Capital Markets LLC and (d) shares of Common Stock pursuant to the
Option Agreement by and the Company and GeneFab, LLC, dated August 7, 2023 (as may be amended, restated or otherwise modified from time to time).
3
“Financial Statements” has the meaning set forth in Section 3.8(b).
“Fundamental Representations” means the representations and warranties made by the Company in Sections 3.1 (Organization and Power), 3.2 (Capitalization), 3.4
(Authorization), 3.5 (Valid Issuance), 3.6 (No Conflict), 3.7 (Consents), 3.8 (SEC Filings; Financial Statements), 3.21 (Nasdaq Stock Market), 3.23 (Xxxxxxxx-Xxxxx Act), 3.28 (Price Stabilization of Common Stock), 3.30 (Investment Company Act), 3.31
(General Solicitation; No Integration or Aggregation), 3.32 (Brokers and Finders), 3.33 (Reliance by the Investors), 3.34 (No Disqualification Events), 3.35 (Other Covered Persons) and 3.36 (No Additional Agreements).
“GAAP” has the meaning set forth in Section 3.8(b).
“Governmental Authorizations” has the meaning set forth in Section 3.13.
“Governmental Entity” means any supranational, national, state, municipal, local or foreign government, any court, tribunal, arbitrator or arbitral body
(public or private), administrative agency, commission or other governmental official, authority or instrumentality (including any legislature, commission, regulatory administrative authority, governmental agency, bureau, branch or department).
“Health Care Laws” has the meaning set forth in Section 3.25.
“HIPAA” has the meaning set forth in Section 3.38.
“Indemnified Person” has the meaning set forth in Section 5.12.
“Initial Closing” has the meaning set forth in Section 2.2.
“Intellectual Property” has the meaning set forth in Section 3.15.
“Investor” and “Investors” have the meanings set forth in the recitals.
“Issuer Covered Person” has the meaning set forth in Section 3.34.
“IT Systems” has the meaning set forth in Section 3.38.
“Laws” has the meaning set forth in Section 3.13.
4
“Lien” means any lien, mortgage, pledge, conditional or installment sale agreement, title defect, encumbrance, covenant, condition, restriction, charge, right
of first refusal, right of first offer, purchase option, easement, security interest, lease, deed of trust, right-of-way, encroachment, defect of title, occupancy right, community property interest or other similar restriction or encumbrance of any
kind, including any restriction on the use, voting, transfer or other exercise of any attributes of ownership.
“Material Adverse Effect” means any change, event, circumstance, development, condition, occurrence, state of facts or effect that, individually or in the
aggregate with any other change, event, circumstance, development, condition, occurrence, state of facts or effect, has or would reasonably be expected to have a material
adverse effect on (a) the business, financial condition, properties, assets (including intangible assets), liabilities (actual or contingent), stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a
whole as currently conducted or as currently proposed to be conducted, (b) the legality or enforceability of any of the Transaction Documents or (c) the ability of
the Company to comply, including preventing or materially impairing the Company from complying, with its obligations under this Agreement, the other Transaction Agreements, or with respect to the Closing, or would reasonably be expected to do so.
“Material Contract” has the meaning set forth in Section 3.12.
“Nasdaq” means the Nasdaq Stock Market LLC.
“National Exchange” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question, together
with any successor thereto: the NYSE American, The New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market and the Nasdaq Capital Market.
“Permitted Liens” means (i) Liens for Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good
faith by appropriate proceedings by the Company or its subsidiaries and for which appropriate reserves have been established in accordance with GAAP; (ii) mechanics’, materialmen’s, carriers’, workers’, warehousemen’s, repairers’ and similar
statutory Liens arising or incurred in the ordinary course of business for amounts which are not delinquent and which are not, individually or in the aggregate, significant; (iii) zoning, entitlement, building and other land use regulations imposed
by Governmental Entities having jurisdiction over the leased real property and which are not violated by the current use or occupancy of such leased real property; (iv) covenants, conditions, restrictions, easements and other similar matters of
record affecting title to the leased real property and which are not violated by the current use or occupancy of such leased real property; (v) Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar
legislation; (vi) Liens arising in connection with sales of foreign receivables; (vii) Liens on goods in transit incurred pursuant to documentary letters of credit; and (viii) purchase money Liens and Liens securing rental payments under ordinary
course capital lease arrangements.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association,
joint venture or any other entity or organization.
5
“Personal Data” has the meaning set forth in Section 3.38.
“Placement Agent” means Leerink Partners LLC.
“Privacy Laws” has the meaning set forth in Section 3.40.
“Privacy Statements” has the meaning set forth in Section 3.40.
“Process” or “Processing” has the meaning set forth in Section 3.40.
“Proposal” has the meaning set forth in Section 5.2.
“Purchase Option” has the meaning set forth in Section 2.2
“Registration Rights Agreement” has the meaning set forth in Section 6.1(j).
“Regulatory Agencies” has the meaning set forth in Section 3.24.
“Representatives” means a Person’s Affiliates, employees, agents, consultants, accountants, attorneys or financial advisors.
“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC having substantially the same effect as such Rule.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Reports” means (a) the Company’s most recently filed Annual Report on Form 10-K and (b)
all Quarterly Reports on Form 10-Q or Current Reports on Form 8-K filed or furnished (as applicable) by the Company following the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed, together in each case with
any documents incorporated by reference therein or exhibits thereto.
“Securities” has the meaning set forth in the recitals.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.
“Series A Directors” has the meaning set forth in Section 5.3.
“Series A Preferred Stock” has the meaning set forth in the recitals.
“Short Sales” include, without limitation, (a) all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not
against the box, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including
on a total return basis), and (b) sales and other transactions through non-U.S. broker dealers or non-U.S. regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
6
“Studies” has the meaning set forth in Section 3.24.
“Subsequent Closing” has the meaning set forth in Section 2.
“Tax Returns” means returns, reports, information statements and other documentation (including any additional or supporting material) filed or maintained, or
required to be filed or maintained, in connection with the calculation, determination, assessment or collection of any Tax and shall include any amended returns required as a result of examination adjustments made by the Internal Revenue Service or
other Tax authority.
“Tax” or “Taxes” means any and all federal, state, local, foreign and other taxes, levies, fees, imposts, duties and
charges of whatever kind (including any interest, penalties or additions to the tax imposed in connection therewith or with respect thereto), whether or not imposed on the Company, including, without limitation, taxes imposed on, or measured by,
income, franchise, profits or gross receipts, and also ad valorem, value added, sales, use, service, real or personal property, capital stock, license, payroll, withholding, employment, social security, workers’ compensation, unemployment
compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, transfer and gains taxes and customs duties.
“Transaction Agreements” means this Agreement, the Warrants, the Certificate of Designation, the Registration Rights Agreement, the Designation Agreements and
any other documents or agreements executed in connection with the transactions contemplated thereunder and hereunder.
“Transfer Agent” means, with respect to the Common Stock, Continental Stock Transfer and Trust Company or such other financial institution that provides
transfer agent services as the Company may engage from time to time.
“Warrant Shares” has the meaning set forth in Section 3.4.
“Warrants” has the meaning set forth in the recitals.
2. Purchase and Sale of Securities.
2.1 Purchase and Sale. On the applicable Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Investors, severally
and not jointly, agree to purchase, the number of shares of Series A Preferred Stock and Warrants, for the aggregate purchase price, set forth opposite the Investor’s name on Exhibit A under the heading “Initial Closing” and, following notice
from the Celadon Investor (as defined below) pursuant to Section 2.2 and upon the terms and conditions set forth herein, as set forth opposite the Investor’s name on Exhibit A under the heading “Subsequent Closing.” The price per
share of Series A Preferred Stock and accompanying Warrant is $2,250.00.
7
2.2 Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 5.8 of this Agreement, the closing of the purchase and sale of the shares of Series A Preferred Stock
and Warrants (the “Initial Closing” and together with the Subsequent Closing (as defined below), the “Closing” and the date on which the applicable Closing occurs, the
“Closing Date”) shall occur remotely via the exchange of documents and signatures at such time as agreed to by the Company and the Investors but (i) in no event earlier than the first Business Day after the
date of this Agreement and (ii) in no event later than the fifth Business Day after the date of this Agreement. On a date subsequent to the Initial Closing, the Company agrees, upon Xxxxxxx Partner SPV 24’s (the “Celadon
Investor’s”) election and delivery of written notice to the Company (which may be via e-mail), on a date no later than thirty (30) days following the Initial Closing (the “Subsequent Closing”), to
sell, and the Celadon Investor agrees to purchase up to the number of shares of Series A Preferred Stock and Warrants, for up to the aggregate purchase price as set forth opposite the Celadon Investor’s name on Exhibit A under the heading
“Subsequent Closing,” upon the terms and subject to the conditions set forth herein (the “Purchase Option”); provided that the Celadon Investor may transfer the right to purchase the shares of Series A
Preferred Stock and accompanying Warrants pursuant to the Purchase Option, to its Affiliates, other Investors or Persons not party to this Agreement; provided further, that any Subsequent Closing pursuant to the Purchase Option shall in no event
occur later than December 27, 2024. At the applicable Closing, (a) the shares of Series A Preferred Stock shall be issued and registered in the name of the Investor, or in such nominee name(s) as designated by such Investor, representing the number
of shares of Series A Preferred Stock to be purchased by the Investor at such Closing as set forth in Exhibit A and (b) the Company shall deliver to the Investor (or such Investor’s designated custodian per its delivery instructions), or in
such nominee name(s) as designated by such Investor, a Warrant exercisable for a number of shares of Common Stock as set forth in Exhibit A with respect to such Investor in each case against payment to the Company of the purchase price
therefor in full, by wire transfer to the Company of immediately available funds, at or prior to the applicable Closing, in accordance with wire instructions provided by the Company to the Investors no less than one Business Day prior to the
applicable Closing. On the applicable Closing Date, the Company will cause the Transfer Agent to issue the shares of Series A Preferred Stock in book-entry form, free and clear of all restrictive and other legends (except as expressly provided in Section
4.10). In the event that the applicable Closing has not occurred within one Business Day after the expected applicable Closing Date, unless otherwise agreed by the Company and such Investor, the Company shall promptly (but no later than one
Business Day thereafter) return the previously wired amounts to each respective Investor by wire transfer of United States dollars in immediately available funds to the account specified by each Investor, and any book entries for the shares of
Series A Preferred Stock and Warrants shall be deemed cancelled; provided that, unless this Agreement has been terminated pursuant to Section 7, such return of funds shall not terminate this Agreement or relieve such Investor of its
obligation to purchase, or the Company of its obligation to issue and sell, the Series A Preferred Stock and Warrants at the applicable Closing.
3. Representations and Warranties of the Company. Except as set forth in the SEC Reports, excluding (i) any exhibits to the SEC Reports and (ii) any risk factor disclosures, any
“forward-looking statements” or similar disclaimer and any other forward-looking statements contained in the SEC Reports (other than as to the Fundamental Representations, which are not so qualified by the SEC Reports), or the Disclosure Schedules, which applicable disclosures in the SEC Reports and the Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made
herein to the extent the applicability of the disclosure contained in the corresponding section of the SEC Reports or the Disclosure Schedules is reasonably apparent from the face of such disclosure, the Company hereby represents and warrants to each
of the Investors and the Placement Agent that the statements contained in this Section 3 are true and correct as of the date of this Agreement and as of the applicable Closing Date (except for the representations and warranties that speak as
of a specific date, which shall be made as of such date).
8
3.1 Organization and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has the requisite power and
authority to own, lease and operate its properties and to carry on its business as now conducted and described in the SEC Reports and is qualified to do business in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification, except where such failure to be in good standing or to have such power and authority or to so qualify would not reasonably be expected to have a Material Adverse Effect. Each of the Company’s subsidiaries is (i)
duly incorporated and validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite power and authority to carry on its business as now conducted and to own or lease its properties and (ii)
qualified to do business as a foreign corporation and in good standing in each jurisdiction in which such qualification is required, except in each case as would not cause a Material Adverse Effect.
3.2 Capitalization.
(a) The Company’s disclosure of its authorized, issued and outstanding capital stock, including disclosure of its issued and outstanding common stock, common stock options, restricted stock
units, performance stock units, and obligations to potentially issue shares of common stock pursuant to earnouts or the GeneFab Option, on the cover page and in the chart in Note 7 of the Company’s Form 10-Q for the quarterly period ended September
30, 2024 was accurate in all material respects as of the date indicated in such SEC Report. Since the date indicated in such SEC Report, except as set forth in the Disclosure Schedules, there has not been any change in the Company’s capital stock,
including in any options, restricted stock units, performance stock units or other obligations to issue shares of common stock. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and
are fully paid and nonassessable; none of such shares were issued in violation of any preemptive rights; and such shares were issued in compliance in all material respects with applicable state and federal securities law and any rights of third
parties.
(b) The shares of Series A Preferred Stock, Conversion Shares and the Warrant Shares have been duly authorized and, when issued in accordance with the terms hereof, with respect to the Series
A Preferred Stock, and with respect to the Conversion Shares, the terms of the Certificate of Designation, and with respect to the Warrant Shares, the terms of the Warrants, the shares of Series A Preferred Stock, Conversion Shares and the Warrant
Shares will be, duly authorized and validly issued and fully paid and non-assessable and will not be subject to any preemptive right, right of first refusal or similar right or any restrictions on transfer under applicable Law or any mortgage, loan
or credit agreement, indenture, bond, note, deed of trust, lease, sublease, license, contract or other agreement (each, a “Contract”) to which the Company is a party, other than, in the case of restrictions on
transfer, those under applicable state and federal securities laws and Sections 4.10 and 6.2(g) of this Agreement. No share of Common Stock has been, and none of the shares of Series A Preferred Stock, Conversion Shares or Warrant Shares will be when
issued, issued in violation of any preemptive right arising by operation of Law, under the Certificate of Incorporation, the Bylaws or any Contract, or otherwise. None of the shares of Series A Preferred Stock, Conversion Shares or Warrant Shares
will be when issued subject to any restrictions on transfer under applicable Law or any Contract to which the Company is a party, other than, in the case of restrictions on transfer, those under applicable state and federal securities laws, and
Sections 4.10 and 6.2(g) of this Agreement. When issued in accordance with the terms hereof and the terms of the Certificate of Designation or the Warrants (as applicable), the shares of Series A Preferred Stock, Conversion Shares and the Warrant
Shares will be free and clear of all Liens (other than Liens incurred by Purchaser or its Affiliates, restrictions arising under applicable securities laws, or restrictions imposed by this Agreement, the Certificate of Designation or the Registration
Rights Agreement).
9
(c) No Person is entitled to preemptive or similar statutory or contractual rights with respect to the issuance by the Company of any securities of the Company, including, without
limitation, the Securities.
(d) Except for the Registration Rights Agreement or otherwise irrevocably waived by all of the parties thereto, there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to the securities of the Company held by them.
(e) Except as otherwise expressly described in this Section 3.2 or as disclosed in Section 3.2 of the Disclosure Schedules: (i) no subscription, warrant, option, convertible security or
other right, commitment, agreement, arrangement issued by the Company or any other obligation of the Company to purchase or acquire any shares of capital stock of the Company is authorized or outstanding; (ii) there is no commitment, agreement,
arrangement or obligation of the Company to issue any subscription, warrant, option, convertible security or other such right or to issue or distribute capital stock of, or other equity or voting interest (or voting debt) in, the Company; (iii) the
Company has no obligation to purchase, redeem or otherwise acquire any shares of its capital stock or to pay any dividend or make any other distribution in respect thereof; (iv) there are no obligations of the Company to grant, extend or enter into
any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests (or voting debt) in, the Company; (v) there are no outstanding
shares of capital stock of, or other equity or voting interests of any character in, the Company as of the date hereof other than shares that have become outstanding after the Capitalization Date which were reserved for issuance as described in the
portion of the SEC Reports described in Section 3.2(a) or pursuant to the exercise or vesting, as applicable, after the Capitalization Date, of outstanding stock options, restricted stock units, warrants or performance-based restricted stock units
described in this Section 3.2, or stock options, restricted stock units, warrants or performance-based restricted stock units issued and subsequently exercised or vested, as applicable, after the Capitalization Date; (vi) there are no agreements,
arrangements or commitments between the Company and any Person relating to the acquisition, disposition or voting of the capital stock of, or other equity or voting interest (or voting debt) in, the Company; and (vii) there are no equity
appreciation, phantom equity, profit participation or similar rights with respect to the Company or any of its capital stock or equity interests.
3.3 Registration Rights. Except as set forth in the Transaction Agreements or as disclosed in the SEC Reports, the Company is presently not under any obligation, and has not granted
any rights, to register under the Securities Act any of the Company’s presently outstanding securities or any of its securities that may hereafter be issued, other than such rights and obligations that have expired or been satisfied or waived.
10
3.4 Authorization. The Company has all requisite corporate power and authority to enter into the Transaction Agreements and to carry out and perform its obligations under the terms
of the Transaction Agreements, including (i) the issuance and sale of the shares of Series A Preferred Stock and Warrants, (ii) the issuance of the Conversion Shares in accordance with the terms of the Certificate of Designation and (iii) the
issuance of the shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms thereof (the “Warrant Shares”). The Board of Directors, or a committee thereof duly authorized by
resolution of the Board of Directors (which resolutions have been provided to all Investors), has approved the execution, delivery and performance by the Company of all Transaction Agreements and the consummation of all transactions contemplated by
the Transaction Agreements, including for purposes of Section 203 of the Delaware General Corporation Law, and has taken all action necessary to render inapplicable any Antitakeover Provision or other Law that is or would have been applicable to any
or all of the Investors. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization of the shares of Series A Preferred Stock, Conversion Shares and the Warrant Shares, the
authorization, execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated herein, including the issuance and sale of the shares of Series A Preferred Stock, Conversion Shares and the
Warrant Shares, has been taken. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each Investor and that this Agreement constitutes the legal, valid and binding
agreement of each Investor, this Agreement and each of the Warrants constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). Upon its
execution by the Company and the other parties thereto and assuming that it constitutes legal, valid and binding agreements of the other parties thereto, the Registration Rights Agreement will constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general
equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). Any member of the Board of Directors who is an Investor or an Affiliate of an Investor recused themselves from all votes of the Board of
Directors (or any committee of the Board of Directors) pricing and approving the transactions contemplated by the Transaction Agreements. There are no agreements or understandings with any Investor with respect to the transactions contemplated by the
Transaction Agreements other than as specified in the Transaction Agreements.
11
3.5 Valid Issuance. The shares of Series A Preferred Stock being purchased by the Investors hereunder have been duly and validly authorized and, upon issuance pursuant to the terms of
this Agreement against full payment therefor in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as
provided in the Transaction Agreements or restrictions on transfer under applicable state and federal securities laws), and the holder of the shares of Series A Preferred Stock shall be entitled to all rights accorded to a holder of Series A
Preferred Stock until such shares of Series A Preferred Stock are converted to Common Stock. The Conversion Shares issuable upon conversion of the shares of Series A Preferred Stock in accordance with the terms of the Certificate of Designation will
be validly issued, fully paid and non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as provided in the Transaction Agreements or restrictions on transfer under applicable state and federal
securities laws), and the holder of the Conversion Shares shall be entitled to all rights accorded to a holder of Common Stock. The Warrant Shares have been duly and validly authorized and reserved for issuance and, upon issuance pursuant to the
terms of the Warrants against full payment therefor in accordance with the terms of the Warrants, will be duly and validly issued, fully paid and non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as
provided in the Transaction Agreements or restrictions on transfer under applicable state and federal securities laws), and the holder of the Warrant Shares shall be entitled to all rights accorded to a holder of Common Stock. Subject to the
accuracy of the representations and warranties made by the Investors in Section 4, the offer and sale of the shares of Series A Preferred Stock and Warrants to the Investors is and will be in compliance with applicable exemptions from (i) the
registration and prospectus delivery requirements of the Securities Act and (ii) the registration and qualification requirements of applicable securities laws of the states of the United States.
3.6 No Conflict. The execution, delivery and performance of the Transaction Agreements by the Company, the issuance and sale of the
Securities and the consummation of the other transactions contemplated by the Transaction Agreements, including the filing of the Certificate of Designation, does not and will not (i) violate any provision of the Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws of the Company, (ii) conflict with or result in a breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any
obligation, a change of control right or to a loss of a benefit under any agreement or instrument, credit facility, franchise, license, judgment, order, statute, law, ordinance, rule or regulations (including the Nasdaq Listing Rules), applicable to
the Company or any of its subsidiaries or their respective properties or assets, (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or any of its subsidiaries is subject (including federal and state securities laws and regulations) and the rules and regulations (including the Nasdaq Listing Rules) of any self-regulatory organization to which the Company or its securities are subject, or by which any property or asset of the Company or any of its subsidiaries is bound or affected, or (iv) result in the creation of any Lien upon any
assets of the Company or any of its subsidiaries or the suspension, revocation or forfeiture of any franchise, permit or license granted by a Governmental Entity to the Company or any of its subsidiaries, other than Liens under federal or state
securities laws, except, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
12
3.7 Consents. Assuming the accuracy of the representations and warranties of the Investors, no consent, approval, authorization, filing with or order of or registration with, any
court or governmental agency or body (including Nasdaq) is required in connection with the authorization, execution or delivery by the Company of the Transaction Agreements, the issuance and sale of the Securities and the performance by the Company
of its other obligations under the Transaction Agreements, except such as (a) have been or will be obtained or made under the Securities Act or the Exchange Act, (b) the filing of any requisite notices and/or application(s) to the National Exchange
for the issuance and sale of the shares of Series A Preferred Stock, the Conversion Shares or the Warrant Shares and the listing of the Conversion Shares or the Warrant Shares for trading or quotation, as the case may be, thereon in the time and
manner required thereby, (c) customary post-closing filings with the SEC or pursuant to state securities laws in connection with the offer and sale of the shares of Series A Preferred Stock, the Conversion Shares, the Warrants or the Warrant Shares
by the Company in the manner contemplated herein, which will be filed on a timely basis, (d) the filing of the registration statement required to be filed by the Registration Rights Agreement, or (e) such that the failure of which to obtain would not
have a Material Adverse Effect. All notices, consents, authorizations, orders, filings and registrations which the Company is required to deliver or obtain prior to the Closing pursuant to the preceding sentence have been obtained or made or will be
delivered or obtained or effected, and shall remain in full force and effect, on or prior to the Closing.
3.8 SEC Filings; Financial Statements.
(a) The Company has filed all forms, statements, certifications, reports and documents required to be filed by it with the SEC under Section 13, 14(a) and 15(d) of the Exchange Act for the
one year preceding the date of this Agreement and is in compliance with General Instruction I.A.3 of Form S-3. As of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date
of such filing), each of the filed SEC Reports complied in all material respects with the applicable requirements of the Exchange Act, and, as of the time they were filed, none of the filed SEC Reports 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 light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments
from the SEC staff with respect to the SEC Reports. To the Company’s knowledge, none of the SEC Reports are the subject of an ongoing SEC review.
(b) The financial statements of the Company included in the SEC Reports (collectively, the “Financial Statements”) 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 (or to the extent corrected by a subsequent restatement) and fairly present in all material respects the consolidated
financial position of the Company as of the dates indicated, and the results of its operations and cash flows for the periods therein specified, all in accordance with United States generally accepted accounting principles (“GAAP”) (except as otherwise noted therein, and in the case of unaudited financial statements, as permitted by Form 10-Q under the Exchange Act, and except that the unaudited financial statements may not contain footnotes and are
subject to normal and recurring year-end adjustments) applied on a consistent basis throughout the periods therein specified (unless otherwise noted therein). Except as set forth in the Financial Statements filed prior to the date of this Agreement,
the Company has not incurred any liabilities, contingent or otherwise, except (i) those incurred in the ordinary course of business, consistent with past practices since the date of such financial statements or (ii) liabilities not required under
GAAP to be reflected in the Financial Statements, in either case, none of which, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect.
13
3.9 Subsidiaries. Other than any subsidiaries of the Company acquired or formed following the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, 2021,
the Company’s subsidiaries consist solely of all the entities listed on Exhibit 21.1 to the Company’s Form 10-K for the year ended December 31, 2021. The Company, directly or indirectly, owns of record and beneficially, free and clear of all Liens
other than Permitted Liens, all of the issued and outstanding capital stock or equity interests of each of its subsidiaries. All of the issued and outstanding capital stock or equity interests of the Company’s subsidiaries has been duly authorized
and validly issued, were not issued in violation of a preemptive right, right of first refusal or similar right, and in the case of corporations, is fully paid and non-assessable. There are no outstanding rights, options, warrants, preemptive rights,
conversion rights, rights of first refusal or similar rights for the purchase or acquisition from any of the Company’s subsidiaries of any securities of such subsidiaries nor are there any commitments to issue or execute any such rights, options,
warrants, preemptive rights, conversion rights or rights of first refusal.
3.10 Absence of Changes. Between December 31, 2023 and the date of this Agreement, (a) the Company has conducted its business only in the ordinary course of business and there have been
no material transactions entered into by the Company (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto); (b) no material change to any material contract or arrangement by
which the Company is bound or to which any of its assets or properties is subject has been entered into that has not been disclosed in the SEC Reports; and (c) there has not been any other event or condition of any character that has had or would
reasonably be expected to have a Material Adverse Effect; provided, however, that none of the following will be deemed in themselves, either alone or in combination, to constitute, and that none of the following will be taken into account in
determining whether there has been or will be, a Material Adverse Effect under this Section 3.10:
(i) any change generally affecting the economy, financial markets or political, economic or regulatory conditions in the United States or any other geographic region in which the Company
conducts business, provided that the Company is not disproportionately affected thereby;
(ii) general financial, credit or capital market conditions, including interest rates or exchange rates, or any changes therein, provided that the Company is not disproportionately affected
thereby;
(iii) any change that generally affects industries in which the Company and its subsidiaries conduct business, provided that the Company is not disproportionately affected thereby;
(iv) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, fires or other natural disasters, weather conditions, global pandemics, including the COVID-19 pandemic and related strains,
epidemic or similar health emergency, and other force majeure events in the United States or any other location, provided that the Company is not disproportionately affected thereby;
(v) national or international political or social conditions (or changes in such conditions), whether or not pursuant to the declaration of a national emergency or war, or the occurrence of
any military or terrorist attack, provided that the Company is not disproportionately affected thereby;
14
(vi) material changes in laws after the date of this Agreement; and
(vii) in and of itself, any material failure by the Company to meet any published or internally prepared estimates of revenues, expenses, earnings or other economic performance for any period
ending on or after the date of this Agreement (it being understood that the facts and circumstances giving rise to such failure may be deemed to constitute, and may be taken into account in determining whether there has been, a Material Adverse
Effect to the extent that such facts and circumstances are not otherwise described in clauses (i)-(v) of this definition).
3.11 Absence of Litigation. There is no action, suit, proceeding, arbitration, claim, investigation, charge, complaint or inquiry pending or, to the Company’s knowledge, threatened
against the Company or any of its subsidiaries which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect, nor are there any orders, writs, injunctions, judgments or decrees outstanding of any
court or government agency or instrumentality and binding upon the Company or any of its subsidiaries that have had or would reasonably be expected to have a Material Adverse Effect. Neither the Company nor any
subsidiary, nor to the knowledge of the Company, any director or officer of the Company or any subsidiary, is, or within the last ten years has been, the subject of any action involving a claim of violation of or liability under federal or state
securities laws relating to the Company or such subsidiary or a claim of breach of fiduciary duty relating to the Company or such subsidiary.
3.12 Contracts. Each Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC), in each case, to which the
Company or any of its subsidiaries is a party or by which the Company, any of its subsidiaries or any of their respective properties or assets is bound (each, a “Material Contract”) is valid and binding on the
Company and any of its subsidiaries to the extent such Person is a party thereto, as applicable, and to the knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding or in full
force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company and each of its subsidiaries, and, to the knowledge of the Company, any other party thereto, is in
compliance in all material respects with all Material Contracts and has performed all obligations required to be performed by it, except where such noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to
have a Material Adverse Effect.
3.13 Compliance with Law; Permits. Neither the Company nor any of its subsidiaries is, or at any time during the last two years has been, in violation of, or has received any notices
of violations with respect to, any laws, statutes, ordinances, rules or regulations (collectively, “Laws”) of
any Governmental Entity, except for violations which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have all required licenses, permits,
certificates and other authorizations (collectively, “Governmental Authorizations”) from such Governmental Entities that are currently necessary for the operation of the business of the Company and its
subsidiaries as currently conducted, except where the failure to possess currently such Governmental Authorizations has not had and is not reasonably expected to have a Material Adverse Effect. Neither the Company nor any subsidiary has received any
written (or, to the Company’s knowledge, oral) notice regarding any revocation or material modification of any such Governmental Authorization, which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, has
or would reasonably be expected to result in a Material Adverse Effect.
15
3.14 Labor Matters.
(a) Neither the Company nor any of its subsidiaries is party to or bound by any collective bargaining agreements or other agreements with labor organizations. To the Company’s knowledge,
neither the Company nor any of its subsidiaries has violated in any material respect any laws, regulations, orders or contract terms affecting the collective bargaining rights of employees or labor organizations, or any laws, regulations or orders
affecting employment discrimination, equal opportunity employment, or employees’ health, safety, welfare, wages and hours.
(b) No material labor dispute with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer, customer or contractor of the
Company or any of its subsidiaries, exists or, to the Company’s knowledge, is threatened or imminent.
3.15 Intellectual Property. The Company and its subsidiaries own, or have rights to use, all material inventions, patent applications, patents, trademarks, trade names, service names,
service marks, copyrights, trade secrets, know how (including unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and other intellectual property as described in the SEC Reports necessary for, or used in
the conduct of their respective businesses (including as described in the SEC Reports) (collectively, “Intellectual Property”), except where any failure to own, possess or acquire such Intellectual Property has
not had, and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Intellectual Property of the Company and its subsidiaries has not been adjudged by a court of competent jurisdiction to be
invalid or unenforceable, in whole or in part. To the Company’s knowledge (after reasonable inquiry): (i) there are no third parties who have rights to any Intellectual Property, including no Liens, security interests, or other encumbrances; and
(ii) there is no infringement by third parties of any Intellectual Property, except, in each case, which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. No action, suit, or
other proceeding is pending, or, to the Company’s knowledge, is threatened: (A) challenging the Company’s or its subsidiaries’ rights in or to any Intellectual Property; (B) challenging the validity, enforceability or scope of any Intellectual
Property; or (C) alleging that the Company or any of its subsidiaries infringes, misappropriates, or otherwise violates any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, except, in each
case, which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have complied in all material respects with the terms of each agreement pursuant to
which Intellectual Property has been licensed to the Company or any of its subsidiaries in all material respects, and all such agreements are in full force and effect. There are no material defects in any of the patents or patent applications
included in the Intellectual Property. The Company and its subsidiaries have taken all reasonable steps to protect, maintain and safeguard their Intellectual Property.
16
3.16 Employee Benefits. Except as would not be reasonably likely to result in a Material Adverse Effect, each Benefit Plan has been established and administered in accordance with its
terms and in compliance with the applicable provisions of ERISA, the Code, the Patient Protection and Affordable Care Act of 2010, as amended, and other applicable laws, rules and regulations. The Company and its subsidiaries are in compliance with
all applicable federal, state and local laws, rules and regulations regarding employment, except for any failures to comply that are not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. There is no labor
dispute, strike or work stoppage against the Company or its subsidiaries pending or threatened which may interfere with the business activities of the Company, except where such dispute, strike or work stoppage is not reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect.
3.17 Taxes. The Company and its subsidiaries have filed all federal, state and foreign income Tax Returns and other Tax Returns required to have been filed under applicable law (or
extensions have been duly obtained) and have paid all Taxes required to have been paid by them, except for those which are being contested in good faith and except where failure to file such Tax Returns or pay such Taxes would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No assessment in connection with United States federal tax returns has been made against the Company. The charges, accruals and reserves on the books of the Company in respect
of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or reassessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would
not result in a Material Adverse Effect. No audits, examinations, or other proceedings with respect to any material amounts of Taxes of the Company and its subsidiaries are presently in progress or have been asserted or proposed in writing without
subsequently being paid, settled or withdrawn. There are no Liens on any of the assets of the Company. At all times since inception, the Company has been and continues to be classified as a corporation for U.S. federal income tax purposes. Neither
the Company nor any of its subsidiaries has been a United States real property holding corporation within the meaning of Code Section 897(c)-2 during the period specified in Code Section 897(c)(1)(A)(ii).
3.18 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 and other Governmental
Authorizations required under applicable Environmental Laws to conduct their business and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
None of the Company nor any of its subsidiaries has received since January 1, 2023, any written notice or other communication (in writing or otherwise), whether from a governmental authority or other Person, that alleges that the Company or any
subsidiary is not in compliance with any Environmental Law and, to the knowledge of the Company, there are no circumstances that may prevent or interfere with the Company’s or any subsidiary’s compliance in any material respects with any
Environmental Law in the future, except where such failure to comply would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company: (i) no current or (during the time a prior property was leased or controlled by
the Company) prior property leased or controlled by the Company or any subsidiary has received since January 1, 2023, any written notice or other communication relating to property owned or leased at any time by the Company, whether from a
governmental authority, or other Person, that alleges that such current or prior owner or the Company or any subsidiary is not in compliance with or violated any Environmental Law relating to such property and (ii) the Company has no material
liability under any Environmental Law.
17
3.19 Title. Each of the Company and its subsidiaries has good and marketable title to all personal property owned by it that is material to the business of the Company, free and clear
of all Liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or its subsidiaries, as the case may be. Any
real property and buildings held under lease by the Company or its subsidiaries is held under valid, subsisting and enforceable leases 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 or its subsidiaries, as the case may be. The Company does not own any real property.
3.20 Insurance. The Company carries or is entitled to the benefits of insurance in such amounts and covering such risks that is customary for comparably situated companies and is
adequate for the conduct of its business and the value of its real and personal properties (owned or leased) and tangible assets, and each of such insurance policies is in full force and effect and the Company is in compliance in all material
respects with the terms of such insurance policies. Other than customary end-of-policy notifications from insurance carriers, since January 1, 2023, the Company has not received any notice or other communication regarding any actual or possible: (i)
cancellation or invalidation of any material insurance policy or (ii) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any insurance policy.
3.21 Nasdaq Stock Market. The issued and outstanding shares of Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq
Capital Market under the symbol “SNTI”. The Company is in compliance with all listing requirements of Nasdaq applicable to the Company. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Company, threatened
against the Company by Nasdaq or the SEC, respectively, to prohibit or terminate the listing of the Common Stock on the Nasdaq Capital Market or to deregister the Common Stock under the Exchange Act. The Company has taken no action as of the date of
this Agreement that is designed to, or could reasonably be expected to, terminate the listing of the Common Stock on the Nasdaq Capital Market or the registration of the Common Stock under the Exchange Act.
3.22 Indebtedness.
(a) As of the date of this Agreement, the Company is not party to any agreement that by its terms restricts, limits, prohibits or prevents the Company from paying dividends or other
distributions of or on equity interests.
18
(b) As of the date of this Agreement, the Company is not party to any agreement relating to (x) the incurrence or assumption of any indebtedness or to mortgaging, pledging or otherwise placing
a Lien on any material portion of the assets of the Company or its Subsidiaries or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) securing any obligation in excess of $500,000 on any assets of the Company or its
Subsidiaries or (y) any guaranty of any indebtedness or other material guaranty.
3.23 Xxxxxxxx-Xxxxx Act. The Company is, and since January 1, 2023 has been, in compliance in all material respects with all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002 and
applicable rules and regulations promulgated by the SEC thereunder.
3.24 Clinical Data and Regulatory Compliance. (i) All materials, preclinical tests and clinical trials and other studies used to support regulatory approval (collectively, “Studies”) previously conducted or being conducted by the Company are described in, or the results of which are referred to in, the SEC Reports, and the Studies were (and, if still pending, are being) conducted in
all material respects in accordance with the protocols, procedures and controls designed and approved for such Studies and with standard medical and scientific research procedures for products or product candidates comparable to those being developed
by the Company and its subsidiaries and all applicable statutes and all applicable rules and regulations of the FDA or from any other U.S. federal, state or local government or foreign government or Drug Regulatory Agency, or Institutional Review
Board, each having jurisdiction over biopharmaceutical products (collectively, the “Regulatory Agencies”); (ii) each description of the results of such Studies is accurate and complete in all material respects
and fairly presents the data derived from such Studies, and the Company and its subsidiaries have no knowledge of any other studies the results of which are inconsistent with, or otherwise call into question, the results described or referred to in
the SEC Reports when viewed in the context in which such results are described and the stage of development of the Company’s product candidates; (iii) the Company and its subsidiaries have made all such filings and obtained all such approvals as may
be required by the Regulatory Agencies for the conduct of its business as described in the SEC Reports, except where such non-compliance would not, individually or in the aggregate, have a Material Adverse Effect;
and (iv) neither the Company nor any of its subsidiaries has received any written notice of, or correspondence from, any of the Regulatory Agencies requiring or threatening the termination material modification or suspension of or imposing any
clinical hold on any preclinical studies or clinical trials that are described or referred to in the SEC Reports.
19
3.25 Compliance with Health Care Laws. The Company and its subsidiaries are in compliance in all material respects with all Health Care Laws to the extent applicable to the Company’s
current business. For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) and the Public Health Service Act (42 U.S.C. Section 201
et seq.), and the regulations promulgated thereunder; (ii) all applicable federal, state, local and foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)); (iii) HIPAA, as
amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.); (iv) the European Union (“EU”) Clinical Trials Regulation (Regulation (EU) No. 536/2014); (v)
the EU Regulation regarding community procedures for authorization and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (Regulation (EC) No. 726/2004); (vi) licensure, quality, safety and
accreditation requirements under applicable federal, state, local or foreign laws or regulatory bodies; (vii) all other local, state, federal laws, relating to the regulation of the Company or its subsidiaries, and (viii) the regulations promulgated
pursuant to such statutes. Neither the Company nor any of its subsidiaries has received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or
governmental or regulatory authority or third party alleging that any product operation or activity is in material violation of any Health Care Laws nor, to the Company’s knowledge, is any such claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action threatened. The Company and its subsidiaries have filed, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as
required by any Health Care Laws, and all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all material respects (or were corrected or
supplemented by a subsequent submission). Neither the Company nor any of its subsidiaries is a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any
governmental or regulatory authority. Additionally, neither the Company nor any of its subsidiaries nor any of their respective employees, officers, directors, or, to the knowledge of the Company, agents has been excluded, suspended or debarred from
participation in any U.S. federal health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that would reasonably be expected to result
in debarment, suspension, or exclusion.
3.26 Internal Control Over Financial Reporting. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s outside auditors and the Audit
Committee of the Board of Directors (a) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report financial information and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting.
3.27 Accounting Controls and Disclosure Controls and Procedures. The Company maintains, and at all time since January 1, 2023 has maintained, a system of internal control over
financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance (i) that the Company maintains records that in reasonable detail accurately and fairly reflect the Company’s transactions and dispositions of
assets, (ii) that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, (iii) that receipts and expenditures are made only in accordance with authorizations of management and the Board of
Directors and (iv) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the Company’s financial statements. Except as disclosed in the Company’s SEC
Reports filed prior to the date of this Agreement, the Company has not identified any material weaknesses in the design or operation of the Company’s internal control over financial reporting. The Company’s “disclosure controls and procedures” (as
defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are designed to provide reasonable assurance that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure.
20
3.28 Price Stabilization of Common Stock. The Company has not taken, nor will it take, directly or indirectly, any action designed to stabilize or manipulate the price of the Common
Stock to facilitate the sale or resale of the Conversion Shares or the Warrant Shares.
3.29 Investment Company Act. The Company is not required to be registered as, and immediately after receipt of payment for the Securities will not be required to register as, an
“investment company” within the meaning of the U.S. Investment Company Act of 1940, as amended.
3.30 General Solicitation; No Integration or Aggregation. Neither the Company nor any other person or entity authorized by the Company to act on its behalf has engaged in a general
solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of Securities pursuant to this Agreement. The Company has not, directly or indirectly, sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which, to its knowledge, is or will be (i) integrated with the Securities sold pursuant to this Agreement for purposes of the
Securities Act or (ii) aggregated with prior offerings by the Company for the purposes of the rules and regulations of the Nasdaq Capital Market. Assuming the accuracy of the representations and warranties
of the Investors set forth in Section 4, neither the Company nor any of its Affiliates, its subsidiaries nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any
offers to buy any Company security, under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) and/or Rule 506 of Regulation D promulgated thereunder for the exemption from registration for the transactions
contemplated hereby.
3.31 Brokers and Finders. Other than the Placement Agent, neither the Company nor any other Person authorized by the Company to act on its behalf has retained, utilized or been
represented by any broker or finder in connection with the transactions contemplated by this Agreement.
3.32 Reliance by the Investors. The Company has a reasonable basis for making each of the representations set forth in this Section 3. The Company acknowledges that each of
the Investors will rely upon the truth and accuracy of, and the Company’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Company set forth herein.
21
3.33 No Disqualification Events. Neither the Company nor any of its (i) predecessors, (ii) Affiliates, (iii) directors, (iv) executive officers, (v) non-executive officers
participating in the placement contemplated by this Agreement, (vi) beneficial owners of 20% or more of its outstanding voting equity securities (calculated on the basis of voting power), (vii) promoters or (viii) investment managers (including any
of such investment managers’ directors, executive officers or officers participating in the placement contemplated by this Agreement) or general partners or managing members of such investment managers (including any of such general partners’ or
managing members’ directors, executive officers or officers participating in the placement contemplated by this Agreement) (each, an “Issuer Covered Person” and, together, “Issuer
Covered Persons”) is subject to the disqualification provisions of Rule 506(d)(1)(i-viii) of Regulation D under the Securities Act (a “Disqualification Event”). The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Investors a copy of any disclosures provided thereunder.
3.34 Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person) that has been or will be paid (directly or
indirectly) remuneration for solicitation of purchasers in connection with the sale of any Securities.
3.35 No Additional Agreements. There are no agreements or understandings between the Company and any Investor with respect to the transactions contemplated by the Transaction
Agreements other than (i) as specified in the Transaction Agreements and (ii) any side letter agreements with any of the Investors, which side letters the Company has shared with all Investors.
3.36 Anti-Bribery and Anti-Money Laundering Laws. Each of the Company, its subsidiaries and, any of their respective officers, directors, supervisors, managers, agents, or employees are
and have at all times been in compliance with and their participation in the offering will not violate: (A) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any
law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as
amended, the U.K. Bribery Act 2010, or any other law, rule or regulation of similar purposes and scope or (B) anti-money laundering laws, including, but not limited to, applicable federal, state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including, without limitation, Title 18 US. Code sections 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.
22
3.37 Cybersecurity. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases
(collectively, “IT Systems”) are adequate, to the Company’s knowledge, for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its
subsidiaries as currently conducted, and, to the Company’s knowledge, are free and clear of all material Trojan horses, time bombs, malware and other malicious code. The Company and its subsidiaries have implemented and maintained commercially
reasonable physical, technical and administrative controls designed to maintain and protect the confidentiality, integrity, availability, privacy and security of all sensitive, confidential or regulated data (“Confidential
Data”) and Personal Data (defined below) used or maintained in connection with their businesses, and the integrity, availability continuous operation, redundancy and security of all IT Systems. “Personal Data”
means the following data used in connection with the Company’s and its subsidiaries’ businesses and in their possession or control: (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
other tax identification number, driver’s license number, passport number, credit card number or bank information; (ii) information that identifies or may reasonably be used to identify an individual and is regulated under applicable Privacy Laws or
would qualify as “personal data,” personal information” or similar term under the Privacy laws; and (iii) any information that would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as
amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”). To the Company’s knowledge, there have been no breaches, outages or unauthorized uses of or accesses to
the Company’s IT Systems, Confidential Data, or Personal Data that would require notification under Privacy Laws (as defined below).
3.38 Antitakeover Provisions. Neither the Company nor any of its subsidiaries is party to an Antitakeover Provision.
3.39 Compliance with Data Privacy Laws. The Company and its subsidiaries are, and in the past three (3) years have been, to the Company’s knowledge, in material compliance with all
applicable privacy and data security laws and regulations regarding the collection, use, storage, retention, disclosure, transfer, disposal, or any other processing (collectively “Process” or “Processing”) of Personal Data (collectively, the “Privacy Laws”). The Company and its subsidiaries have in place, comply with, and take appropriate steps intended to comply
in all material respects with their policies and procedures relating to data privacy and security, and the Processing of Personal Data (the “Privacy Statements”) as well as the Privacy Laws. The Company and its
subsidiaries have, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, in the past three (3) years provided accurate notice of their Privacy Statements then in effect to its customers,
employees, third party vendors and Representatives. To the Company’s knowledge, none of such disclosures made or contained in any Privacy Statements have been materially inaccurate, misleading, incomplete, or in material violation of any Privacy
Laws.
3.40 Transactions with Affiliates and Employees. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, that is required to be described in the SEC Reports that is not so described.
3.41 CFIUS. The Company does not engage in (a) the design, fabrication, development, testing, production or manufacture of one (1) or more “critical technologies” (as defined in 31
C.F.R. § 800.215); (b) the ownership, operation, maintenance, supply, manufacture, or servicing of “covered investment critical infrastructure” (as defined in 31 C.F.R. § 800.212); or (c) the maintenance or collection, directly or indirectly, of
“sensitive personal data” of U.S. citizens (as defined in 31 C.F.R. § 800.241).
23
4. Representations and Warranties of Each Investor. Each Investor, severally for itself and not jointly with any other Investor, represents and warrants to the Company and the
Placement Agent that the statements contained in this Section 4 are true and correct as of the date of this Agreement and the Closing Date:
4.1 Organization. The Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has the requisite power and
authority to own, lease and operate its properties and to carry on its business as now conducted.
4.2 Authorization. The Investor has all requisite corporate or similar power and authority to enter into this Agreement and the other Transaction Agreements to which it will be a
party and to carry out and perform its obligations hereunder and thereunder. All corporate, member or partnership action on the part of such Investor or its stockholders, members or partners necessary for the authorization, execution, delivery and
performance of this Agreement and the other Transaction Agreements to which it will be a party and the consummation of the other transactions contemplated in this Agreement has been taken. The execution, delivery and performance by such Investor of
the Transaction Agreements to which such Investor is a party has been duly authorized and each has been duly executed. Assuming this Agreement constitutes the legal and binding agreement of the Company, this Agreement constitutes a legal, valid and
binding obligation of such Investor, enforceable against such Investor in accordance with its respective terms, except as such enforceability may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and/or similar laws relating to or affecting the rights of creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
4.3 No Conflicts. The execution, delivery and performance of the Transaction Agreements by the Investor, the purchase of the Securities in accordance with their terms and the
consummation by the Investor of the other transactions contemplated hereby will not conflict with or result in any violation of, breach or default by such Investor (with or without notice or lapse of time, or both) under, conflict with, or give rise
to a right of termination, cancellation or acceleration of any obligation, a change of control right or to a loss of a material benefit under (i) any provision of the organizational documents of the Investor, including, without limitation, its
incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable or (ii) any agreement or instrument, undertaking, credit facility, franchise, license, judgment, order, ruling, statute, law,
ordinance, rule or regulations, applicable to such Investor or its respective properties or assets, except, in the case of clause (ii), as would not, individually or in the aggregate, be reasonably expected to materially delay or hinder the ability
of the Investor to perform its obligations under the Transaction Agreements.
4.4 Residency. The Investor’s residence (if an individual) or offices in which its investment decision with respect to the Securities was made (if an entity) are located at the
address immediately below the Investor’s name on Exhibit A, except as otherwise communicated by the Investor to the Company.
4.5 Brokers and Finders. The Investor has not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement whose
fees the Company would be required to pay.
24
4.6 Investment Representations and Warranties. The Investor hereby represents and warrants that, it (i) as of the date of this Agreement is, if an entity, a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” as that term is defined in Rule 501(a) under Regulation D promulgated pursuant to the Securities Act; or (ii) if an individual, is an “accredited
investor” as that term is defined in Rule 501(a) of Regulation D of the Securities Act and has such knowledge and experience in financial and business matters as to be able to protect its own interests in connection with an investment in the
Securities. The Investor further represents and warrants that (x) it is capable of evaluating the merits and risk of such investment, and (y) that it has not been organized for the purpose of acquiring the Securities and is an “institutional account”
as defined by FINRA Rule 4512(c). The Investor understands and agrees that the offering and sale of the Securities has not been registered under the Securities Act or any applicable state securities laws and is being made in reliance upon federal and
state exemptions for transactions not involving a public offering which depend upon, among other things, the bona fide nature of the investment intent and the accuracy of the Investor’s representations as expressed herein.
4.7 Intent. The Investor is purchasing the Securities solely for the Investor’s own account and not for the account of others, and not with a view to the resale or distribution of any
part thereof in violation of the Securities Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s
right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws. Notwithstanding the foregoing, if the Investor is purchasing the Securities as a fiduciary or
agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of
each such account. The Investor has no present arrangement to sell the Securities to or through any person or entity. The Investor understands that the Securities must be held indefinitely unless such Securities are resold pursuant to a registration
statement under the Securities Act or an exemption from registration is available. Nothing contained herein shall be deemed a representation or warranty by the Investor to hold the Securities for any period of time.
4.8 Investment Experience; Ability to Protect Its Own Interests and Bear Economic Risks. The Investor acknowledges that it can bear the economic risk and complete loss of its
investment in the Securities and has knowledge and experience in finance, securities, taxation, investments and other business matters as to be capable of evaluating the merits and risks of investments of the kind described in this Agreement and
contemplated hereby, and the Investor has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor acknowledges that the
Investor (i) is a sophisticated investor, experienced in investing in private placements of equity securities and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies
involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. The Investor acknowledges that the Investor is aware that there are substantial risks incident to the
purchase and ownership of the Securities, including those set forth in the Company’s filings with the SEC. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in
the Securities and determined that the Securities are a suitable investment for the Investor. The Investor is, at this time and in the foreseeable future, able to afford the loss of the Investor’s entire investment in the Securities and the Investor
acknowledges specifically that a possibility of total loss exists.
25
4.9 Independent Investment Decision. The Investor understands that nothing in the Transaction Agreements or any other materials presented by or on behalf of the Company to the Investor
in connection with the purchase of the Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in such Investor’s sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Securities.
4.10 Securities Not Registered; Legends. The Investor acknowledges and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning
of the Securities Act, and the Investor understands that the Securities have not been registered under the Securities Act, by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act,
and that the Securities must continue to be held and may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such
registration and in each case in accordance with any applicable securities laws of any state of the United States. The Investor understands that the exemptions from registration afforded by Rule 144 (the provisions of which are known to it)
promulgated under the Securities Act depend on the satisfaction of various conditions including, but not limited to, the time and manner of sale, the holding period and on requirements relating to the Company which are outside of the Investor’s
control and which the Company may not be able to satisfy, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. The Investor acknowledges and agrees that it has been advised to consult legal counsel prior to making
any offer, resale, transfer, pledge or disposition of any of the Securities. The Investor acknowledges that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as
to the fairness of this investment.
The Investor understands that any certificates or book entry notations evidencing the shares of Securities may bear one or more legends in substantially the following form and substance:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144,
(III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT, OR (IV) THE SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE OF
SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN OPINION).”
26
In addition, the Securities may contain a legend regarding affiliate status of the Investor, if applicable.
4.11 No General Solicitation. The Investor acknowledges and agrees that the Investor is purchasing the Securities directly from the Company. Investor became aware of this offering of
the Securities solely by means of direct contact from the Placement Agent or directly from the Company as a result of a pre-existing, substantive relationship with the Company or the Placement Agent, and/or their respective advisors (including,
without limitation, attorneys, accountants, bankers, consultants and financial advisors), agents, control persons, Representatives, Affiliates, directors, officers, managers, members, and/or employees, and/or the Representatives of such persons. The
Securities were offered to Investor solely by direct contact between Investor and the Company, the Placement Agent and/or their respective Representatives. Investor did not become aware of this offering of the Securities, nor were the Securities
offered to Investor, by any other means, and none of the Company, the Placement Agent and/or their respective Representatives acted as investment advisor, broker or dealer to Investor. The Investor is not purchasing the Securities as a result of any
general or public solicitation or general advertising, or publicly disseminated advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, radio
or the internet or presented at any seminar or any other general solicitation or general advertisement, including any of the methods described in Section 502(c) of Regulation D under the Securities Act.
4.12 Access to Information. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the opportunity to ask such questions,
receive such answers and obtain such information from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities as the Investor and the Investor’s professional advisor(s), if any, have deemed
necessary to make an investment decision with respect to the Securities and that the Investor has independently made its own analysis and decision to invest in the Company. Neither such inquiries nor any other due diligence investigation conducted by
the Investor shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement.
4.13 Certain Trading Activities. Other than consummating the transaction contemplated hereby, the Investor has not, nor has any Person acting on behalf of or pursuant to any
understanding with the Investor, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that the Investor was first contacted by the Company or any
other Person regarding the transaction contemplated hereby and ending immediately prior to the date of this Agreement. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth
above shall only apply with respect to the portion of the assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement and to its
advisors and agents who had a need to know such information, the Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to
effect Short Sales or similar transactions in the future.
27
4.14 Disqualification Event. To the extent the Investor is one of the covered persons identified in Rule 506(d)(1), the Investor represents that no Disqualification Event is applicable
to the Investor or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. The Investor hereby agrees that it shall notify the
Company promptly in writing in the event a Disqualification Event becomes applicable to the Investor or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is
applicable. For purposes of this Section, “Rule 506(d) Related Party” means a person or entity that is a beneficial owner of the Investor’s securities for purposes of Rule 506(d) of the Securities Act.
4.15 Regulation M. Such Investor is aware that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of Common Stock and other activities with respect
to the Common Stock by the Investors.
5. Covenants.
5.1 Further Assurances. Each party agrees to cooperate with each other and their respective officers, employees, attorneys, accountants and other agents, and, generally, do such
other reasonable acts and things in good faith as may be necessary to effectuate the intents and purposes of this Agreement, subject to the terms and conditions of this Agreement and compliance with applicable law, including taking reasonable action
to facilitate the filing of any document or the taking of reasonable action to assist the other parties hereto in complying with the terms of this Agreement. The Investor acknowledges that the Company and the Placement Agent will rely on the
acknowledgments, understandings, agreements, representations and warranties contained in this Agreement. Prior to the Closing, the Investor agrees to promptly notify the Company if any of the acknowledgments, understandings, agreements,
representations and warranties set forth in Section 4 of this Agreement are no longer accurate.
5.2 Stockholder Approval; Listing.
(a) The Company shall use commercially reasonable efforts to maintain the listing and trading of its Common Stock on the Nasdaq Capital Market and, in accordance therewith, shall use
reasonable best efforts to comply in all material respects with the Company’s reporting, filing and other obligations under the rules and regulations of Nasdaq.
28
(b) The Company shall, as soon as practicable following the Subsequent Closing, but not more than fifteen (15) days thereafter, file with the SEC a preliminary proxy statement for a special
meeting of its stockholders, at which the Company’s stockholders will be asked to approve the issuance of all Conversion Shares and all shares of Common Stock issuable upon the exercise of the Warrants in compliance with Nasdaq Listing Rule 5635(b)
and/or (d) in compliance with the rules and regulations of The Nasdaq Stock Market LLC (the “Proposal”). The Company shall give each Investor that requests a draft of the preliminary proxy statement a
reasonable opportunity to review and comment on the draft prior to the initial filing of the preliminary proxy statement. No other business other than a proposal for the approval of an increase in the shares of Common Stock reserved for issuance
under the Company’s 2022 Stock Incentive Plan shall be conducted at the stockholders’ meeting except with the consent of the Celadon Investor, such consent not to be unreasonably withheld.
(c) The Company shall notify and consult with the Investors in respect of any comments on the preliminary proxy statement received from the staff of the Commission and, as soon as practicable
following notification from the staff of the Commission that it has completed its review of the preliminary proxy statement or that it will not review the preliminary proxy statement, shall file and mail a definitive proxy statement for the special
meeting and vote of its stockholders to approve the Proposal and hold the special meeting as promptly as possible thereafter.
(d) The Company covenants and agrees that its Board of Directors shall unanimously recommend that the Proposal be approved by the Corporation’s stockholders at all meetings in which such
Proposal are considered.
(e) In accordance with the Certificate of Designation, the Company shall cause a number of shares of Common Stock equal to the total number of Conversion Shares and the Warrant Shares to be
authorized, reserved, and kept available at all times, free and clear of preemptive rights and all Liens, to allow for full conversion of the Series A Preferred Stock in accordance with the terms thereof.
(f) From time to time following approval by the Company’s stockholders of the Proposal, the Company shall cause the number of shares of Common Stock issuable upon conversion or redemption of
the then outstanding shares of Series A Preferred Stock (including, for the avoidance of doubt, any shares of Common Stock issuable upon conversion of dividends that are paid in kind on the shares of Series A Preferred Stock) and the Warrants to be
approved for listing on the Nasdaq Capital Market.
(g) The Company shall pay all fees and expenses in connection with satisfying the obligations under this Section 5.2.
5.3 Corporate Opportunities.
(a) In recognition and anticipation that (1) certain directors, principals, officers, employees or other representatives of the Investors and their Affiliates may serve as directors, officers
or agents of the Company, and (2) the Investors and their Affiliates, and the directors designated by the Investors pursuant to certain designation agreements (each a “Designation Agreement”) dated as of the
date of this Agreement (the “Series A Directors”) and their respective Affiliates, may now engage and may continue to engage in the same or similar activities or lines of business as, or in other activities or
lines of business that overlap with or compete with, those in which the Company, directly or indirectly, now engages or may engage or proposes to engage, the provisions of this Section 5.3 are set forth to regulate and define the conduct of
certain affairs of the Company with respect to certain classes or categories of business opportunities as they may involve the Investors, the Series A Directors or their respective Affiliates, as applicable, and the powers, rights, duties and
liabilities of the Company and its directors, officers and stockholders in connection therewith.
29
(b) None of (1) the Investors or any of their Affiliates, or (2) the Series A Directors or any of their respective Affiliates (the Persons identified in (1) and (2) above being referred to
as “Identified Persons”) shall, to the fullest extent permitted by law, have any duty to refrain from, directly or indirectly, (A) engaging in the same or similar activities or lines of business in which the
Company or any of its Affiliates now engages or proposes to engage or (B) otherwise competing with the Company or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Company or its
stockholders or to any Affiliate of the Company for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities.
(c) To the fullest extent permitted by law, the Company hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity that
may be a corporate opportunity for an Identified Person and the Company or any of its Affiliates. Subject to the following sentence, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity
that may be a corporate opportunity for itself, herself or himself and the Company or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business
opportunity to the Company or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Company or its stockholders or to any Affiliate of the Company for breach of any fiduciary duty as a stockholder, director or
officer of the Company solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person or does not communicate
information regarding such corporate opportunity to the Company. Notwithstanding the foregoing, the Company does not renounce its interest in any corporate opportunity offered to a Series A Director (including if a Series A Director serves as an
officer of this Company) if such opportunity is offered to such person solely in his or her capacity as a director or officer of the Company, and this section shall not apply to any such corporate opportunity.
(d) In addition to and notwithstanding the foregoing provisions of this Agreement or anything to the contrary in the Certificate of Designation, to the fullest extent permitted by law, a
potential corporate opportunity shall not be deemed to be a corporate opportunity for the Company if it is a business opportunity that (1) the Company is neither financially or legally able, nor contractually permitted, to undertake, (2) from its
nature, is not in the line of the Company’s business or is of no practical advantage to the Company, or (3) is one in which the Company has no interest or reasonable expectancy.
(e) To the fullest extent permitted by law, any Person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Company shall be deemed to have notice
of and to have consented to the provisions of this Section 5.3.
30
5.4 Antitakeover Provisions. If, after the execution and delivery of this Agreement, any Antitakeover Provision shall apply or purport to apply to this Agreement, the
Registration Rights Agreement, the Certificate of Designation or any of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Certificate of Designation, the Board of Directors shall, to the fullest extent
permitted by applicable Law, take all actions necessary so that such transactions may be consummated as promptly as practicable on the terms required by, or provided for, in this Agreement, the Registration Rights Agreement and the Certificate of
Designation, and otherwise take all such other actions as are necessary to eliminate or minimize to the greatest extent possible the effects of any such Antitakeover Provision thereupon or upon the transactions contemplated thereby.
5.5 Disclosure of Transactions.
(a) The Company shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Agreement, file with the SEC a Current Report on Form 8-K
(including all exhibits thereto, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by the other Transaction Agreements and attaching this Agreement and the
other Transaction Documents as exhibits to such Disclosure Document. Notwithstanding anything in this Agreement to the contrary, the Company shall not publicly disclose the name of any Investor or any of its affiliates or advisers, or include the
name of any Investor or any of its affiliates or advisers in any press release or filing with the SEC (other than any registration statement contemplated by the Registration Rights Agreement) or any regulatory agency, without the prior written
consent of the Investor, except (i) as required by the federal securities law in connection with (A) any registration statement contemplated by the Registration Rights Agreement and (B) the filing of final Transaction Agreements with the SEC or
pursuant to other routine proceedings of regulatory authorities, or (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of the Nasdaq Capital Market.
(b) No later than December 31, 2024 the Company shall issue a press release and/or a Current Report on Form 8-K (the actual date of such press release and/or Current Report on Form 8-K, the
“Disclosure Date”) disclosing all material non-public information concerning the Company disclosed to the Investors. Consequently, following the Disclosure Date, no Investor shall be in possession of any
material non-public information concerning the Company disclosed to the Investors by the Company or its Representatives in connection with the transactions contemplated under this Agreement. The Company understands and confirms that the Investors
will rely on the foregoing representation in effecting securities transactions.
(c) Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents and upon compliance by the Company of this Section 5.5 or Section 8.1
herein, the Company covenants and agrees that, following the Disclosure Date, neither it, nor any other Person acting on its behalf will provide the Investor or its agents or counsel with any information that constitutes, or the Company reasonably
believes constitutes, material non-public information, unless prior thereto the Investor shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms
that each Investor shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its subsidiaries, or any of their respective officers, directors, agents, employees or
Affiliates delivers any material, non-public information to an Investor without the Investor’s consent, following the Disclosure Date, the Company hereby covenants and agrees that the Investor shall not have any duty of confidentiality to the
Company, any of its subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not
to trade on the basis of, such material, non-public information, provided that the Investor shall remain subject to applicable law. The Company understands and confirms that each Investor shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
31
(d) Notwithstanding Section 5.5(c) or any other provision to the contrary herein , the Company, or any other Person acting on its behalf, may at any time on or after the date hereof provide
to any Investor, to the extent such Investor (i) is then serving as a director, officer or employee of the Company or (ii) is represented by any designee(s) then serving on the Board of Directors, any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, without obtaining prior consent from such Investor to the receipt of such information. Any information provided to the Investor pursuant to this Section 5.5(d) shall be kept
confidential by the Investor.
5.6 Integration. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that will be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the
sale of the Securities to the Investors, or that will be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any National Exchange such that it would require stockholder approval prior to the closing of
such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
5.7 Removal of Legends.
(a) In connection with any sale, assignment, transfer or other disposition of the shares of Series A Preferred Stock, Conversion Shares or Warrant Shares by an Investor pursuant to Rule 144
or pursuant to any other exemption under the Securities Act such that the purchaser acquires freely tradable shares and upon compliance by the Investor with the requirements of this Agreement, if requested by the Investor by notice to the Company,
the Company shall request the Transfer Agent to remove any restrictive legends related to the book entry account holding such shares and make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends as soon
as reasonably practicable following any such request therefor from the Investor, provided that the Company has timely received from the Investor customary representations and other documentation reasonably acceptable to the Company in connection
therewith. The Company shall be responsible for the fees of its Transfer Agent and its legal counsel associated with such legend removal.
32
(b) Subject to receipt from the Investor by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer
Agent in connection therewith, upon the earliest of such time as the shares of Series A Preferred Stock, Conversion Shares or Warrant Shares (i) have been sold under the Securities Act pursuant to an effective registration statement; (ii) have been
sold pursuant to Rule 144, or (iii) are eligible for resale under Rule 144(b)(1) without the requirement for the Company to be in compliance with the current public information requirements under Rule 144(c)(1) (or any successor provision), the
Company shall, in accordance with the provisions of this Section 5.7(b) and as soon as reasonably practicable following any request therefor from an Investor accompanied by such customary and reasonably acceptable documentation referred to
above, (A) deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry shares, and (B) cause its counsel to deliver to the Transfer Agent one or more opinions to the effect
that the removal of such legends in such circumstances may be effected under the Securities Act if required by the Transfer Agent to effect the removal of the legend in accordance with the provisions of this Agreement.
(c) Notwithstanding anything provided in Sections 5.7(a) and 5.7(b) herein, the restrictive legends related to the Series A Preferred Stock, Conversion Shares or Warrant Shares shall only be
removed (i) in connection with a sale pursuant to the Registration Statement or (ii) in connection with and pursuant to Rule 144 if the Investor has held the Series A Preferred Stock, Conversion Shares or Warrant Shares, as applicable, for more than
one (1) year.
5.8 Withholding Taxes. Each Investor agrees to furnish the Company with any information, representations and forms as shall reasonably be requested by the Company from time to time
to assist the Company in complying with any applicable tax law (including any withholding obligations).
5.9 Fees and Commissions. The Company shall be solely responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s commissions (other than for
Persons engaged by an Investor) relating to or arising out of the transactions contemplated hereby, including, without limitation, any fees or commissions payable to the Placement Agent.
5.10 Compliance with Transaction Agreements. The Company shall comply with each of its obligations under the Transaction Agreements.
5.11 No Conflicting Agreements. The Company will not take any action, enter into any agreement or make any commitment that would conflict or interfere in any material respect with the
Company’s obligations to the Investors under the Transaction Agreements.
5.12 Indemnification.
(a) The Company agrees to indemnify and hold harmless each Investor and its Affiliates, and their respective directors, officers, trustees, members, managers, employees, investment advisers
and agents (collectively, the “Indemnified Persons”), from and against any and all losses, claims, damages, liabilities and expenses (including without limitation reasonable and documented attorney fees and
disbursements and other documented out-of-pocket expenses reasonably incurred in connection with investigating, preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) to which such Person
may become subject as a result of any breach of representation, warranty, covenant or agreement made by or to be performed on the part of the Company under the Transaction Agreements, and will reimburse any such Person promptly upon demand for all
such amounts as they are incurred by such Person, provided, that any Person so reimbursed by the Company shall return such amounts to the Company solely to the extent such amounts have been finally judicially determined to have resulted from such Person’s fraud or willful misconduct.
33
(b) Any person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim of which such person has actual knowledge with respect to
which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses,
(b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of
interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and provided, further, that the failure of any indemnified party to give written notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying
party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying party will, except with the consent
of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement unless such judgment or settlement (i) imposes no liability or obligation on, (ii)
includes as an unconditional term thereof the giving of a complete, explicit and unconditional release from the party bringing such indemnified claims of all liability of the indemnified party and its affiliates in respect of such claim or litigation
in favor of, and (iii) does not include any admission of fault, culpability, wrongdoing, or wrongdoing or malfeasance by or on behalf of, the indemnified party. No indemnified party will, except with the consent of the indemnifying party, which
consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement of any action for which such indemnified party is seeking indemnification hereunder.
5.13 Subsequent Equity Sales. From the date of this Agreement until the earlier of (a) sixty (60) days after the Closing Date and (b) the Business Day immediately following the
effective date of the registration statement filed pursuant to the Registration Rights Agreement, the Company shall not (A) issue shares of Common Stock or Common Stock Equivalents, (B) effect a reverse stock split, recapitalization, share
consolidation, reclassification or similar transaction affecting the outstanding Common Stock or (C) file with the SEC a registration statement under the Securities Act relating to any shares of Common Stock or Common Stock Equivalents, except
pursuant to the terms of the Registration Rights Agreement. Notwithstanding the foregoing, the provisions of this Section 5.13 shall not apply to (i) the issuance of the Securities hereunder, (ii) the filing of a registration statement on
Form S-8 under the Securities Act to register the offer and sale of securities on an equity incentive plan or employee stock purchase plan, or (iii) in respect of any Exempt Issuance.
34
5.14 Reservation of Common Stock. As of the date of this Agreement, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of
preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the (i) Warrant Shares that are issuable upon the exercise of the Warrants and (ii) Conversion Shares that are issuable upon the
conversion of the shares of Series A Preferred Stock.
5.15 Tax Matters.
(a) USRPHC Status. As of the Closing Date, the Company is not, and never has been, a U.S. real property holding corporation within the
meaning of Section 897(c)(2) of the Code (a “USRPHC”). The Company shall notify the Investors promptly following any “determination date” (as defined in Treasury
Regulation Section 1.897-2(c)(1)) or otherwise within five (5) business days of becoming aware that the Company is, or is reasonably likely to be, a USRPHC. At any Investor’s request from time to time while
such Investor owns an equity interest in the Company, the Company shall use commercially reasonable efforts to determine as promptly as practicable whether it is a USRPHC and shall promptly notify the Investor in writing of its determination of its status as a USRPHC (and if in connection with a sale, shall, to the extent the Company determines that equity interests in the Company are not United States real
property interests under Code Section 897, promptly provide to such Investor a statement in accordance with Treasury Regulations Section 1.897-2(h)(1) where it determines
the interest being sold is not a United States real property interest within the meaning of Section 897 of the Code).
(b) Tax Treatment. The Company and the Investors acknowledge and agree not to treat the Series A
Preferred Stock as “preferred stock” within the meaning of Section 305 of the Code and Treasury Regulation Section 1.305-5 for U.S. federal income Tax and withholding Tax purposes, and neither the Company nor the Investors shall take any position
with respect to the Series A Preferred Stock for U.S. federal income Tax and withholding Tax purposes that is inconsistent with such treatment.
(c) Dividends. Each of the Company and the Investors intend that neither the Investors nor any of their
Affiliates shall be required to include in income any dividend income for U.S. federal income Tax purposes by reason of the application of Section 305 of the Code to the Series A Preferred Stock or otherwise except to the extent of the amount of
any dividends on the Series A Preferred Stock that are declared and paid in cash. The Company and the Investors agree to take no positions or actions inconsistent with such intended treatment (including on any IRS Form 1099), unless otherwise
required by a change in applicable law after the date hereof or pursuant to a “determination” within the meaning of Section 1313(a) of the Code.
(d) Redemptions. The Company shall use commercially reasonable efforts to cooperate with the Investors to
structure any redemption or repurchase of Series A Preferred Stock permitted under the Certificate of Designation to be treated as a payment in exchange for stock pursuant to Section 302 of the Code.
35
(e) Liquidations, etc. For so long as the Investors own equity or securities convertible into
equity in the Company, the Company shall not be liquidated, merged, or converted into a limited liability company, or otherwise enter into a transaction, in each case if the Company (or the surviving company following a merger) ceases to exist as
an entity treated as a corporation for U.S. federal income Tax purposes (and state and local Tax purposes, where applicable), without at least a majority in interest of the Securities then held by the Investors.
(f) Transfer Taxes. Except as provided in Section 13 of the Certificate of Designation, the Company will
pay any and all transfer, documentary, sales, use, registration and other similar Taxes incurred in connection with this Agreement and the issuance and purchase of shares of Series A Preferred Stock.
(g) IRS Form. At the Closing, each Investor shall deliver to the Company a duly executed, valid,
accurate and properly completed Internal Revenue Service (“IRS”) Form W-9 or applicable IR Form W-8 (with any required attachments). Each Investor agrees that if the information provided on any IRS Form W-9 or IRS Form W-8 previously delivered by the
Investor changes, or if a lapse in time or change in circumstances renders the information on such IRS Form W-9 or IRS Form W-8 obsolete, expired or inaccurate in any material respect, the Investor shall promptly inform the Company and deliver
promptly an updated IRS Form W-9 or IRS Form W-8.
(h) Withholding. The Company shall withhold such amounts as it is required to withhold pursuant to applicable law with respect to cash distributions or payments relating to the Series
A Preferred Stock, in a manner consistent with Section 5.15(c) and amounts so withheld in accordance with this Section 5.15(h) shall be treated as having been paid to the party with respect to which such withholding is made. The Company shall remit
and pay the amounts so withheld to the applicable governmental authorities in accordance with applicable law. If the Company determines that any amounts are so required to be deducted and withheld from any such payment made to a holder of Series A
Preferred Stock, at least five (5) Business Days prior to the date the applicable payment is scheduled to be made, the Company shall provide such holder of Series A Preferred Stock with (i) written notice of such intent to deduct and withhold, which
notice shall include the basis for the withholding and an estimate of the amount proposed to be deducted and withheld, and (ii) a reasonable opportunity to provide forms or other evidence that would exempt such amounts from withholding, and the
Company shall reasonably cooperate with the holder of the Series A Preferred Stock to reduce or eliminate amounts required to be withheld in accordance with applicable law.
5.16 Use of Proceeds. The net proceeds of the sale of the Securities hereunder shall be used by the Company for non-clinical and clinical development activities, research and business
development activities, repayment of debt, working capital and general corporate purposes.
5.17 Negative Covenants. From the date of this Agreement until there are less than 6,347 shares of Series A Preferred Stock outstanding, the Company and its subsidiaries shall
operate their businesses in the ordinary course, and, without the prior written consent of the Requisite Holders (as defined in the Certificate of Designation) (which consent shall not be unreasonably
withheld, conditioned or delayed), the Company shall not and shall cause its subsidiaries not to:
36
(a) take any action that would require the consent of the Requisite Holders pursuant to Section 4 of the Certificate of Designation;
(b) split, combine, subdivide, recapitalize, reclassify or make like change to any shares of its capital stock or other equity or voting interests;
(c) make any material amendments to the organizational documents of any of the Company’s subsidiaries;
(d) issue capital stock of the Company that would cause require the Company to obtain approval of its stockholders under the continued listing requirements of the Nasdaq;
(e) grant any Lien on the material property or assets of the Company or its subsidiaries other than Permitted Liens; or
(f) agree, authorize or commit to do any of the foregoing; provided, however, that any approval of the foregoing items that is contingent upon
receipt of the consent of the Investors required pursuant to this Section 5.17 shall not, solely by reason thereof, be deemed to be an action in violation hereof.
5.18 State Securities Laws. The Company shall use its reasonable best efforts to (a) obtain all necessary
permits and qualifications, if any, or secure an exemption therefrom, required by any state or country prior to the offer, sale and issuance of the Conversion Shares, the shares of Series A Preferred Stock or the Warrant Shares and (b) cause such
authorization, approval, permit or qualification to be effective as of the Closing and as of any conversion of Series A Preferred Stock.
5.19 Sponsor.
(a) Notwithstanding anything to the contrary set forth in this Agreement, none of the terms or provisions of this Agreement shall in any way limit the activities of Celadon Partners (Asia
Pacific) Limited (the “Sponsor”) or any of its Affiliates (collectively, the “Sponsor Group”), other than the Investors (the “Excluded
Sponsor Parties”), so long as (i) no such Excluded Sponsor Party or any of its Representatives is acting on behalf of or at the direction of any Investor with respect to any matter that otherwise would violate any term or provision of this
Agreement and (ii) no Confidential Information is made directly available to any Excluded Sponsor Party or any of its Representatives by or on behalf of any Investor or any of their Representatives, except with respect to any such Representative who
is (x) compliance personnel for compliance purposes and (y) non-compliance personnel of Sponsor who are directors or officers of, or function in a similar oversight role at, such Affiliate as long as Confidential Information is not otherwise
disclosed to such Affiliate.
37
(b) The Investors and the Company hereby agree, notwithstanding anything to the contrary in any other agreement or at law or in equity, that, to the maximum extent permitted by law, when the
Investors take any action under this Agreement to give or withhold their consent, the Investor shall have no duty (fiduciary or other) to consider the interests of the Company or the other stockholders of the Company and may act exclusively in their
own interest; provided, however, that the foregoing shall in no way affect the obligations of the parties hereto to comply with the provisions of this Agreement.
6. Conditions of Closing.
6.1 Conditions to the Obligation of the Investors. The several obligations of each Investor to consummate the transactions to be consummated at the Closing, and to purchase and pay for
the Securities being purchased by it at the Closing pursuant to this Agreement, are subject to the satisfaction or waiver in writing of the following conditions precedent:
(a) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects, except for those
representation and warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as though made on and as of such date, except to the
extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date, except for those representations and
warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects as of such earlier date.
(b) Performance. The Company shall have performed in all material respects the obligations and conditions herein required to be performed or observed by the Company on or prior to
the Closing Date.
(c) No Injunction. The purchase of and payment for the Securities by each Investor shall not be prohibited or enjoined by any law or governmental or court order or regulation and no
such prohibition shall have been threatened in writing.
(d) Consents. The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for the consummation of the purchase and sale of the
Securities, all of which shall be in full force and effect.
(e) Transfer Agent. The Company shall have furnished all required materials to the Transfer Agent to reflect the issuance of the shares of Series A Preferred Stock and Warrants at the
Closing.
(f) Adverse Changes. Since the date of this Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse
Effect.
(g) Opinion of Company Counsel. The Company shall have delivered to the Investors and the Placement Agent the opinion of Xxxxxxx Procter LLP, dated as of the Closing Date, in
customary form and substance to be reasonably agreed upon with the Investors and addressing such legal matters as the Investors and the Company reasonably agree.
38
(h) Compliance Certificate. An authorized officer of the Company shall have delivered to the Investors at the Closing Date a certificate certifying that the conditions specified in Sections
6.1(a) (Representations and Warranties), 6.1(b) (Performance), 6.1(c) (No Injunction), 6.1(d) (Consents), 6.1(e) (Transfer Agent), 6.1(f) (Adverse Changes), 6.1(k) (Listing Requirements) and 6.1(l)
(No Injunction) of this Agreement have been fulfilled.
(i) Secretary’s Certificate. The Secretary of the Company shall have delivered to the Investors at the Closing Date a certificate certifying (i) the Amended and Restated Certificate
of Incorporation; (ii) the Certificate of Designation, (iii) the Amended and Restated Bylaws; and (iv) resolutions of the Company’s Board of Directors (or an authorized committee thereof) approving this Agreement, the other Transaction Agreements,
the transactions contemplated by this Agreement and the issuance of the Securities.
(j) Registration Rights Agreement. The Company shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit B (the “Registration Rights Agreement”) to the Investors.
(k) Listing Requirements. No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect to public
trading in the Common Stock. The Common Stock shall be listed on a National Exchange and shall not have been suspended, as of the Closing Date, by the SEC or the National Exchange from trading thereon nor shall suspension by the SEC or the National
Exchange have been threatened, as of the Closing Date, in writing by the SEC or the National Exchange.
(l) No Injunction. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of
or by any Governmental Entity, shall have been issued, and no action or proceeding shall have been instituted by any Governmental Entity, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction
Agreements.
(m) Payment. The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of Securities being
purchased by each Investor at the Closing as set forth in Exhibit A.
(n) Certificate of Designation. The Company shall have filed the Certificate of Designation with the Secretary of State for the State of Delaware and such Certificate of Designation
shall continue to be in full force and effect as of the Closing Date.
(o) Nasdaq Pre-Clearance. The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Conversion Shares and the Warrant
Shares and received notification from Nasdaq that the review process has been completed, and Nasdaq shall have raised no objection (not subsequently withdrawn) that the consummation of the transactions contemplated by this Agreement would violate
the Nasdaq listing rules applicable to the Company and that if not withdrawn would result in the delisting of the Common Stock.
39
6.2 Conditions to the Obligation of the Company. The obligation of the Company to consummate the transactions to be consummated at the Closing, and to issue and sell to each Investor
the Securities to be purchased by it at the Closing pursuant to this Agreement, is subject to the satisfaction or waiver in writing of the following conditions precedent:
(a) Representations and Warranties. The representations and warranties of each Investor in Section 4 hereto shall be true and correct on and as of the Closing Date, with the
same force and effect as though made on and as of the Closing Date and consummation of the Closing shall constitute a reaffirmation by the Investor of each of the representations, warranties, covenants and agreements of the Investor contained in this
Agreement as of the Closing Date.
(b) Performance. Each Investor shall have performed or complied with in all material respects all obligations and conditions herein required to be performed or observed by such
Investor on or prior to the Closing Date.
(c) Injunction. The purchase of and payment for the Securities by each Investor shall not be prohibited or enjoined by any law or governmental or court order or regulation.
(d) Registration Rights Agreement. Each Investor shall have executed and delivered the Registration Rights Agreement to the Company in the form attached as Exhibit B.
(e) Payment. The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of shares of Series A
Preferred Stock and Warrants being purchased by each Investor at the Closing as set forth in Exhibit A.
(f) Nasdaq Pre-Clearance. The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Conversion Shares and the Warrant
Shares and Nasdaq shall have raised no objection to such notice and the transactions contemplated hereby.
(g) Lock-Up. Each Investor shall have executed a customary lock-up agreement covering the period through the date ninety (90) days from the conversion of the Series A Preferred Stock
into Conversion Shares, in such form as agreed to by the Company and such Investor.
7. Termination.
7.1 Termination. The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows:
(i) Upon the mutual written consent of the Company and the Investors that agreed to purchase a majority of the Securities prior to the Closing;
(ii) By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company;
40
(iii) By an Investor (with respect to itself only) if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by such
Investor; or
(iv) By either the Company or an Investor (with respect to itself only) if the Closing has not occurred on or prior to the fifth Business Day following the date of this Agreement;
provided, however, that, in the case of clauses (ii) and (iii) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations,
warranties, covenants or agreements contained in the Transaction Agreements if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.
7.2 Notice. In the event of termination by the Company or the Investor of its obligations to effect the Closing pursuant to Section 7.1, written notice thereof shall be given
to the other Investors by the Company. Nothing in this Section 7 shall be deemed to release any party from any liability for any breach by such party of the other terms and provisions of the Transaction Agreements or to impair the right of
any party to compel specific performance by any other party of its other obligations under the Transaction Agreements.
8. Miscellaneous Provisions.
8.1 Public Statements or Releases. Except as set forth in Section 5.5, neither the Company nor any Investor shall make any public announcement with respect to the existence or terms
of this Agreement or the transactions provided for herein without the prior consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, and subject to compliance with Section 5.5, nothing in this
Section 8.1 shall prevent any party from making any public announcement it considers necessary in order to satisfy its obligations under the law, including applicable securities laws, or under the rules of any national securities exchange or
securities market, in which case the Company shall allow the Investors reasonable time to comment on such release or announcement in advance of such issuance, and the Company will consider in good faith any Investor comments. The Company shall not
include the name of the Investor in any press release or public announcement (which, for the avoidance of doubt, shall not include any filing with the SEC) without the prior written consent of the Investors, except as otherwise required by law or the
applicable rules or regulations of any securities exchange or securities market, in which case the Company shall allow the Investors, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or
announcement in advance of such issuance. Notwithstanding anything to the contrary in this Section 8.1, Investor and Company review shall not be required for Company and Investor disclosures that are substantially consistent with prior Company or
Investor disclosures.
8.2 Notices. Any notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be given (a) when delivered if personally
delivered to the party for whom it is intended, (b) when delivered, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day, (c) three (3) days
after having been sent by certified or registered mail, return-receipt requested and postage prepaid, or (d) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery,
with written verification of receipt:
41
(a) If to the Company, addressed as follows:
0 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
South San Francisco, CA 94080
Attention: Chief Executive Officer
Email: [***]
with a copy (which shall not constitute notice):
Xxxxxxx Procter LLP
Three Embarcadero Center
San Francisco, CA 94111
Attention: Xxxxxx Xxxx, Esq.
Email: [***]
(b) If to any Investor, at its address or e-mail address set forth on Exhibit A, or such address as subsequently modified by written notice given in accordance with this Section
8.2.
Any Person may change the address to which notices and communications to it are to be addressed by notification as provided for herein.
8.3 Consent to Electronic Notice. Each Investor consents to the delivery of any stockholder notice pursuant to the Delaware General Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic mail pursuant to Section 232 of the DGCL (or any successor thereto) at the e-mail address set forth below the Investor’s name on the signature page or Exhibit A, as
updated from time to time by notice to the Company. To the extent that any notice given by means of electronic mail is returned or undeliverable for any reason, the foregoing consent shall be deemed to have been revoked until a new or corrected
e-mail address has been provided, and such attempted electronic notice shall be ineffective and deemed to not have been given. Each party agrees to promptly notify the other parties of any change in its e-mail address, and that failure to do so shall
not affect the foregoing.
8.4 Severability. If any part or provision of this Agreement is held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or
unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall
remain binding upon the parties hereto.
8.5 Governing Law; Dispute Resolution.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to choice of laws or conflicts of laws provisions thereof that
would require the application of the laws of any other jurisdiction, except to the extent that mandatory principles of Delaware law may apply.
42
(b) The Company and each of the Investors hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating solely to this Agreement or the transactions contemplated hereby, to the general jurisdiction of the any
state court or United States Federal court sitting in the Borough of Manhattan, City of New York in the State of New York;
(ii) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;
(iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the party, as the case may be, at its address set forth in Section 8.2 or at such other address of which the other party shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction for
recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (i) are not available despite the intentions of the parties hereto;
(v) agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon
such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by law;
(vi) agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such
party hereby irrevocably waives such immunity in respect of its obligations under this Agreement, to the extent permitted by law; and
(vii) irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement.
8.6 Expenses. Except as expressly set forth in the Transaction Agreements to the contrary, each party shall pay its own out-of-pocket fees and expenses, including the fees and
expenses of attorneys, accountants and consultants employed by such party, incurred in connection with the proposed investment in the Securities and the consummation of the transactions contemplated thereby; provided, however, that the Company shall
pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes (other than income taxes) and duties levied in connection with the
delivery of any Securities to the Investors. Notwithstanding the foregoing, the Company shall pay the reasonable fees and expenses of the Celadon Investor, in an amount not to exceed $350,000.00 in the aggregate. The Company shall pay all Placement
Agent fees relating to or arising out of the transactions contemplated by this Agreement.
43
8.7 Assignment. None of the parties may assign its rights or obligations under this Agreement or designate another person (i) to perform all or part of its obligations under this
Agreement or (ii) to have all or part of its rights and benefits under this Agreement, in each case without the prior written consent of (x) the Company, in the case of an Investor, and (y) the Investors, in the case of the Company, provided that an
Investor may, without the prior consent of the Company, assign its rights to purchase the Securities hereunder to any of its affiliates or to any other investment funds or accounts managed or advised by the investment manager who acts on behalf of
such Investor (provided each such assignee agrees to be bound by the terms of this Agreement and makes the same representations and warranties set forth in Section 4 ). In the event of any assignment in accordance with the terms of this
Agreement, the assignee shall specifically assume and be bound by the provisions of this Agreement by executing a writing agreeing to be bound by and subject to the provisions of this Agreement and shall deliver an executed counterpart signature page
to this Agreement and, notwithstanding such assumption or agreement to be bound hereby by an assignee, no such assignment shall relieve any party assigning any interest hereunder from its obligations or liability pursuant to this Agreement.
8.8 Confidential Information. (a) Each Investor covenants that until such time as the transactions contemplated by this Agreement and any material non-public information provided to
such Investor are publicly disclosed by the Company, such Investor will maintain the confidentiality of all disclosures of material non-public information made to it in connection with this transaction (including the existence and terms of this
transaction), other than to such Investor’s outside attorney, accountant, auditor or investment advisor only to the extent necessary to permit evaluation of the investment, and the performance of the necessary or required tax, accounting, financial,
legal, or administrative tasks and services and other than as may be required by law.
(b) The Company may request from the Investors such reasonable and customary additional information as the Company may deem necessary to evaluate the eligibility of the Investor to acquire
the Securities, and the Investor shall promptly provide such information as may reasonably be requested to the extent readily available; provided, that the Company agrees to keep any such information provided by the Investor confidential, except (i)
as required by the federal securities laws, rules or regulations and (ii) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the SEC or regulatory agency or under the regulations of Nasdaq.
The Investor acknowledges that the Company may file a copy of this Agreement and the Registration Rights Agreement with the SEC as exhibit to a periodic report or a registration statement of the Company.
44
8.9 Reliance by and Exculpation of Placement Agent.
(a) Each Investor agrees for the express benefit of the Placement Agent, its affiliates and its representatives that (i) the Placement Agent, its affiliates and its representatives have not
made, and will not make any representations or warranties with respect to the Company or the offer and sale of the Securities, and the Investor will not rely on any statements made by the Placement Agent, orally or in writing, to the contrary, (ii)
the Investor will be responsible for conducting its own due diligence investigation with respect to the Company and the offer and sale of the Securities, (iii) the Investor will be purchasing Securities based on the results of its own due diligence
investigation of the Company and the Placement Agent and each of its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Securities, or the accuracy,
completeness, or adequacy of any information supplied to the Investor by the Company, (iv) the Investor has negotiated the offer and sale of the Securities directly with the Company, and the Placement Agent will not be responsible for the ultimate
success of any such investment and (v) the decision to invest in the Company will involve a significant degree of risk, including a risk of total loss of such investment. Each Investor further represents and warrants to the Placement Agent that it,
including any fund or funds that it manages or advises that participates in the offer and sale of the Securities, is permitted under its constitutive documents (including, without limitation, all limited partnership agreements, charters, bylaws,
limited liability company agreements, all applicable side letters with investors, and similar documents) to make investments of the type contemplated by this Agreement. This Section 8.10 shall survive any termination of this Agreement.
(b) The Company agrees and acknowledges that the Placement Agent may rely on its representations, warranties, agreements and covenants contained in this Agreement and each Investor agrees
that the Placement Agent may rely on such Investor’s representations and warranties contained in this Agreement as if such representations and warranties, as applicable, were made directly to the Placement Agent.
(c) Neither the Placement Agent nor any of its affiliates or representatives (1) shall be liable for any improper payment made in accordance with the information provided by the Company; (2)
makes any representation or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to the Transaction Agreements or
in connection with any of the transactions contemplated therein; or (3) shall be liable (x) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers
conferred upon it by the Transaction Agreements or (y) for anything which any of them may do or refrain from doing in connection with the Transaction Agreements, except in each case for such party’s own gross negligence or willful misconduct.
(d) The Company agrees that the Placement Agent, its affiliates and representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument,
notice, letter or any other document or security delivered to any of them by or on behalf of the Company, and (2) be indemnified by the Company for acting as the Placement Agent hereunder pursuant to the indemnification provisions set forth in the
applicable letter agreement between the Company and the Placement Agent.
8.10 Third Parties. Nothing in this Agreement, express or implied, is intended to confer on any Person other than the parties to this Agreement any rights, remedies, claims, benefits,
obligations or liabilities under or by reason of this Agreement, and no Person that is not a party to this Agreement (including, without limitation, any partner, member, shareholder, director, officer, employee or other beneficial owner of any party
to this Agreement, in its own capacity as such or in bringing a derivative action on behalf of a party to this Agreement) shall have any standing as a third party beneficiary with respect to this Agreement or the transactions contemplated hereby.
Notwithstanding the foregoing, (i) the Placement Agent is an intended third-party beneficiary of the representations and warranties of the Company and of each Investor set forth in Section 3, Section 4 and Section 6.1(h) and Section
8.10 respectively, of this Agreement and (ii) the Indemnified Persons are intended third-party beneficiaries of Section 5.13.
45
8.11 Independent Nature of Investors’ Obligations and Right. The obligations of each Investor under this Agreement are several and not joint with the obligations of any other Investor,
and no Investor shall be responsible in any way for the performance obligations of any other Investor under this Agreement. Nothing contained herein, and no action taken by any Investor pursuant hereto, shall be deemed to constitute the Investors as,
and the Company acknowledges that the Investors do not so constitute, a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group, and the
Company will not assert any such claim with respect to such obligations or the transactions contemplated by this Agreement. The Company acknowledges and each Investor confirms that it has independently participated in the negotiation of the
transaction contemplated hereby with the advice of its own counsel and advisors. Each Investor also acknowledges that Xxxxxxx Procter LLP has not rendered legal advice to such Investor. Each Investor shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose. The Company has elected to
provide all Investors with the same terms and Transaction Agreements for the convenience of the Company and not because it was required or requested to do so by any Investor.
8.12 Headings. The titles, subtitles and headings in this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
8.13 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 or pdf signature including any electronic signatures complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx 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, not a facsimile or pdf (or other electronic reproduction of a) signature.
8.14 Entire Agreement; Amendments. This Agreement, including the Disclosure Schedules, and the other Transaction Agreements (including all schedules and exhibits hereto and thereto),
together with any side letter agreements with any of the Investors, constitute the entire agreement between the parties hereto respecting the subject matter of this Agreement and supersedes all prior agreements, negotiations, understandings,
representations and statements respecting the subject matter of this Agreement, whether written or oral. No amendment, modification, alteration, or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless
made in writing and duly executed by the Company and the Investors of at least a majority in interest of the Securities then held by the Investors, provided that prior to the Closing the consent of all Investors shall be required Notwithstanding the
foregoing, this Agreement may not be amended and the observance of any term of this Agreement may not be waived with respect to any Investor without the written consent of such Investor unless such amendment or waiver applies to all Investors in the
same fashion. The Company, on the one hand, and each Investor, on the other hand, may by an instrument signed in writing by such parties waive the performance, compliance or satisfaction by such Investor or the Company, respectively, with any term
or provision of this Agreement or any condition hereto to be performed, complied with or satisfied by such Investor or the Company, respectively. Notwithstanding the foregoing or anything else herein to the contrary, no amendment, modification,
alteration, change or waiver of this Section 8.15 shall be valid without the prior written consent of the Placement Agent, which consent may be granted or withheld in the sole discretion of the Placement Agent.
46
8.15 Survival. The covenants, representations and warranties made by each party hereto contained in this Agreement shall survive the Closing and the delivery of the Securities in
accordance with their respective terms. Each Investor shall be responsible only for its own representations, warranties, agreements and covenants hereunder.
8.16 Contract Interpretation. This Agreement is the joint product of each Investor and the Company and each provision of this Agreement has been subject to the mutual consultation,
negotiation and agreement of such parties and shall not be construed for or against any party hereto.
8.17 Arm’s Length Negotiations. For the avoidance of doubt, the parties acknowledge and confirm that the terms and conditions of the Securities were determined as a result of
arm’s-length negotiations.
[Remainder of Page Intentionally Left Blank.]
47
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
|
COMPANY:
|
||
|
By:
|
||
|
Name:
|
Xxxxxxx Xx
|
|
|
Title:
|
Chief Executive Officer
|
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
|
INVESTOR:
|
||
|
[NAME]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
Email:
|
||
[Signature Page to Securities Purchase Agreement]
EXHIBIT A
INVESTORS
[***]
A-1
EXHIBIT B
FORM OF WARRANT
[***]
B-1
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
[***]
C-1
EXHIBIT D
CERTIFICATE OF DESIGNATION
[***]
D-1
