Exhibit 10.1
PURCHASE AGREEMENT
PURCHASE AGREEMENT
(the “Agreement”), dated as of August 4, 2023, by and between IBIO, INC., a Delaware corporation (the “Company”),
and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).
WHEREAS:
Subject to the terms and conditions
set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from the Company, up to Ten Million
Dollars ($10,000,000) of the Company's common stock, par value $0.001 per share (the “Common Stock”). The shares of
Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”
NOW THEREFORE, in consideration
of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Investor hereby agree as follows:
1. CERTAIN
DEFINITIONS.
For purposes of this Agreement,
the following terms shall have the following meanings:
(a) “Accelerated
Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the Business Day
immediately following the applicable Purchase Date with respect to the corresponding Regular Purchase referred to in clause (i) of the
second sentence of Section 2(b) hereof.
(b) “Accelerated
Purchase Floor Price” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof and any Additional
Accelerated Purchase made pursuant to Section 2(c) hereof, $0.20, which shall be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction, the Floor Price shall mean the lower of (i) the
adjusted price and (ii) $0.20.
(c) “Accelerated
Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof,
the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the applicable Purchase Date with respect
to the corresponding Regular Purchase referred to in clause (i) of the second sentence of Section 2(b) hereof and (ii) the minimum
per share price threshold set forth in the applicable Accelerated Purchase Notice.
(d) “Accelerated
Purchase Notice” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to purchase the number of Purchase Shares specified by the Company
therein as the Accelerated Purchase Share Amount to be purchased by the Investor (such specified Accelerated Purchase Share Amount subject
to adjustment in accordance with Section 2(b) hereof as necessary to give effect to the Purchase Share amount limitations applicable
to such Accelerated Purchase Share Amount as set forth in this Agreement) at the applicable Accelerated Purchase Price on the applicable
Accelerated Purchase Date for such Accelerated Purchase.
(e) “Accelerated
Purchase Price” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, ninety-seven
percent (97%) of the lower of (i) the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated
Purchase Date, or such other time publicly announced by the Principal Market as the official open (or commencement) of trading on
the Principal Market on such applicable Accelerated Purchase Date (the “Accelerated Purchase Commencement Time”),
and ending at the earliest of (A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or such other time
publicly announced by the Principal Market as the official close of trading on the Principal Market on such applicable Accelerated
Purchase Date, (B) such time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the
total number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the applicable Accelerated Purchase
Share Volume Maximum, and (C) such time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase,
that the Sale Price has fallen below the applicable Accelerated Purchase Minimum Price Threshold (such earliest of (i)(A), (i)(B)
and (i)(C) above, the “Accelerated Purchase Termination Time”), and (ii) the Closing Sale Price of the Common
Stock on such applicable Accelerated Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).
(f) “Accelerated
Purchase Share Amount” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, the number
of Purchase Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice, which number of Purchase
Shares shall not exceed the lesser of (i) three hundred percent (300%) of the number of Purchase Shares directed by the Company to be
purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(b) hereof (subject to the Purchase Share limitations contained in Section 2(a)
hereof) and (ii) an amount equal to (A) the Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume) of shares
of Common Stock traded on the Principal Market during the period on the applicable Accelerated Purchase Date beginning at the Accelerated
Purchase Commencement Time for such Accelerated Purchase and ending at the Accelerated Purchase Termination Time for such Accelerated
Purchase.
(g) “Accelerated
Purchase Share Percentage” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, thirty
percent (30%).
(h) “Accelerated
Purchase Share Volume Maximum” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, a
number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company in the applicable Accelerated Purchase
Notice as the Accelerated Purchase Share Amount to be purchased by the Investor in such Accelerated Purchase, divided by (ii) the Accelerated
Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction).
(i) “Additional
Accelerated Purchase Date” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c) hereof,
the Business Day (i) that is the Accelerated Purchase Date with respect to the corresponding Accelerated Purchase referred to in clause
(i) of the proviso in the second sentence of Section 2(c) hereof and (ii) on which the Investor receives, prior to 1:00 p.m., Eastern
time, on such Business Day, a valid Additional Accelerated Purchase Notice for such Additional Accelerated Purchase in accordance with
this Agreement.
(j) “Additional
Accelerated Purchase Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the Business Day immediately
preceding the applicable Additional Accelerated Purchase Date with respect to such Additional Accelerated Purchase and (ii) the minimum
per share price threshold set forth in the applicable Additional Accelerated Purchase Notice.
(k) “Additional
Accelerated Purchase Notice” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number of Purchase Shares
specified by the Company therein as the Additional Accelerated Purchase Share Amount to be purchased by the Investor (such specified Additional
Accelerated Purchase Share Amount subject to adjustment in accordance with Section 2(c) hereof as necessary to give effect to the
Purchase Share amount limitations applicable to such Additional Accelerated Purchase Share Amount as set forth in this Agreement) at the
applicable Additional Accelerated Purchase Price on the applicable Additional Accelerated Purchase Date for such Additional Accelerated
Purchase.
(l) “Additional
Accelerated Purchase Price” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c) hereof,
ninety-seven percent (97%) of the lower of (i) the VWAP for the period on the applicable Additional Accelerated Purchase Date, beginning
at the latest of (A) the applicable Accelerated Purchase Termination Time with respect to the corresponding Accelerated Purchase referred
to in clause (i) of the proviso in the second sentence of Section 2(c) hereof on such Additional Accelerated Purchase Date, (B)
the applicable Additional Accelerated Purchase Termination Time with respect to the most recently completed prior Additional Accelerated
Purchase on such Additional Accelerated Purchase Date, as applicable, and (C) the time at which all Purchase Shares subject to all prior
Accelerated Purchases and Additional Accelerated Purchases (as applicable), including, without limitation, those that have been effected
on the same Business Day as the applicable Additional Accelerated Purchase Date with respect to which the applicable Additional Accelerated
Purchase relates, have theretofore been received by the Investor as DWAC Shares in accordance with this Agreement (such latest of (i)(A),
(i)(B) and (i)(C) above, the “Additional Accelerated Purchase Commencement Time”), and ending at the earliest of (X)
4:00 p.m., Eastern time, on such Additional Accelerated Purchase Date, or such other time publicly announced by the Principal Market as
the official close of trading on the Principal Market on such Additional Accelerated Purchase Date, (Y) such time, from and after the
Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase, that total number (or volume) of shares of
Common Stock traded on the Principal Market has exceeded the applicable Additional Accelerated Purchase Share Volume Maximum, and (Z)
such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase, that the Sale
Price has fallen below the applicable Additional Accelerated Purchase Minimum Price Threshold (such earliest of (i)(X), (i)(Y) and (i)(Z)
above, the “Additional Accelerated Purchase Termination Time”), and (ii) the Closing Sale Price of the Common Stock
on such Additional Accelerated Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend,
stock split, reverse stock split or other similar transaction).
(m) “Additional
Accelerated Purchase Share Amount” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional Accelerated Purchase Notice,
which number of Purchase Shares shall not exceed the lesser of (i) three hundred percent (300%) of the number of Purchase Shares directed
by the Company to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase
referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof (subject to the Purchase Share limitations
contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Additional Accelerated Purchase Share Percentage multiplied
by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during the period on the applicable Additional
Accelerated Purchase Date beginning at the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase
and ending at the Additional Accelerated Purchase Termination Time for such Additional Accelerated Purchase.
(n) “Additional
Accelerated Purchase Share Percentage” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, thirty percent (30%).
(o) “Additional
Accelerated Purchase Share Volume Maximum” means, with respect to an Additional Accelerated Purchase made pursuant to Section
2(c) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company in the applicable
Additional Accelerated Purchase Notice as the Additional Accelerated Purchase Share Amount to be purchased by the Investor in such Additional
Accelerated Purchase, divided by (ii) the Additional Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(p) “Alternate
Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof,
the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated in accordance
with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such Regular Purchase, a
Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One Hundred Thousand Dollars ($100,000).
(q) “Available
Amount” means, initially, Ten Million Dollars ($10,000,000) in the aggregate, which amount shall be reduced by the Purchase
Amount each time the Investor purchases Purchase Shares pursuant to Section 2 hereof.
(r) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(s) “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market is open
for trading for a period of time less than the customary time.
(t) “Closing
Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal Market as
reported by the Principal Market.
(u) “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment), which
is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally shall
be considered Confidential Information if such information is confirmed in writing as being Confidential Information within ten (10) Business
Days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties.
Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the
public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after
disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the
possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party as shown by the receiving
party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party
without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the
receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party
gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting
the information from public disclosure.
(v) “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(w) “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(x) “DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified Deposit/Withdrawal
at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter adopted
by DTC performing substantially the same function.
(y) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(z) “Floor
Price” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, $0.15, which shall be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction and, effective upon the
consummation of any such reorganization, recapitalization, non-cash dividend, stock split or other similar transaction, the Floor Price
shall mean the lower of (i) the adjusted price and (ii) $0.15.
(aa) “Fully Adjusted
Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction from and after the date of this Agreement, the Regular Purchase Share Limit (as defined in Section 2(a) hereof)
in effect on the applicable date of determination, after giving effect to the full proportionate adjustment thereto made pursuant to Section
2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend, stock split or other similar transaction.
(bb) “Material
Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the
results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other than any material
adverse effect that resulted exclusively from (A) any change in the United States or foreign economies or securities or financial
markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (B) any change
that generally affects the industry in which the Company and its Subsidiaries operate that does not have a disproportionate effect on
the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with earthquakes, hostilities, acts of war,
epidemic, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage
or terrorism or military actions existing as of the date hereof, (D) any action taken by the Investor, its affiliates or its or their
successors and assigns with respect to the transactions contemplated by this Agreement, (E) the effect of any change in applicable
laws or accounting rules that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, or (F) any
change resulting from compliance with terms of this Agreement or the consummation of the transactions contemplated by this Agreement,
or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document
to be performed as of the date of determination.
(cc) “Maturity
Date” means the first day of the month immediately following the twenty-four (24) month anniversary of the Commencement Date.
(dd) “PEA
Period” means the period commencing at 9:30 a.m., Eastern time, on the fifth (5th) Business Day immediately
prior to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement
(as such term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day
immediately following, the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New
Registration Statement (as such term is defined in the Registration Rights Agreement).
(ee) “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.
(ff) “Principal
Market” means the NYSE American LLC (or any nationally recognized successor thereto); provided, however, that in the event the
Company’s Common Stock is ever listed or traded on The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select
Market, the New York Stock Exchange, the NYSE Arca, or the OTCQB or the OTCQX operated by OTC Markets Group, Inc. (or any nationally recognized
successor to any of the foregoing), then the “Principal Market” shall mean such other market or exchange on which the
Company’s Common Stock is then listed or traded.
(gg) “Purchase
Amount” means, with respect to any Regular Purchase, any Accelerated Purchase or any Additional Accelerated Purchase made hereunder,
as applicable, the portion of the Available Amount to be purchased by the Investor pursuant to Section 2 hereof.
(hh) “Purchase
Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business Day on which the Investor
receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time, on such Business Day, a valid Regular Purchase Notice for
such Regular Purchase in accordance with this Agreement.
(ii) “Purchase
Price” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, the lower of: (i) the lowest
Sale Price on the applicable Purchase Date for such Regular Purchase and (ii) the arithmetic average of the three (3) lowest Closing Sale
Prices for the Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately preceding such Purchase
Date for such Regular Purchase (in each case, to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction that occurs on or after the date of this Agreement).
(jj) “Regular
Purchase Notice” means, with respect to any Regular Purchase pursuant to Section 2(a) hereof, an irrevocable written
notice from the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares at the applicable Purchase
Price as specified by the Company therein on the applicable Purchase Date for such Regular Purchase.
(kk) “Sale Price”
means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(ll) “SEC”
means the U.S. Securities and Exchange Commission.
(mm) “Securities”
means, collectively, the Purchase Shares and the Commitment Shares.
(nn) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(oo) “Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock
or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the
Securities Act.
(pp) “Transaction
Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement and
the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered into or furnished
by the parties hereto in connection with the transactions contemplated hereby and thereby.
(qq) “Transfer Agent”
means Continental Stock Transfer & Trust Company, or such other Person who is then serving as the transfer agent for the Company in
respect of the Common Stock.
(rr) “VWAP”
means in respect of an Accelerated Purchase Date and an Additional Accelerated Purchase Date, as applicable, the volume weighted average
price of the Common Stock on the Principal Market, as reported on the Principal Market or by another reputable source such as Bloomberg,
L.P.
2. PURCHASE OF COMMON STOCK.
Subject to the terms and conditions
set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has the obligation to purchase from the
Company, Purchase Shares as follows:
(a) Commencement
of Regular Sales of Common Stock. Upon the satisfaction of all of the conditions set forth in Sections 7 and 8
hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement
Date”) and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery
to the Investor of a Regular Purchase Notice from time to time, to purchase up to One Hundred Thousand (100,000) Purchase Shares,
subject to adjustment as set forth below in this Section 2(a) (such maximum number of Purchase Shares, as may be adjusted
from time to time, the “Regular Purchase Share Limit”), at the Purchase Price on the Purchase Date (each such
purchase a “Regular Purchase”); provided, however, that (i) the Regular Purchase Share Limit shall
be increased to One Hundred Fifty Thousand (150,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the
applicable Purchase Date is not below $1.00, and (ii) the Regular Purchase Share Limit shall be increased to Two Hundred Thousand
(200,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $2.00 (all of
which share and dollar amounts shall be appropriately proportionately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction; provided that if, after giving effect to the full proportionate
adjustment to the Regular Purchase Share Limit therefor, the Fully Adjusted Regular Purchase Share Limit then in effect would
preclude the Company from delivering to the Investor a Regular Purchase Notice hereunder for a Purchase Amount (calculated by
multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase Share Limit, by (Y) the Purchase Price
per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor) equal to or greater than One
Hundred Thousand Dollars ($100,000), the Regular Purchase Share Limit for such Regular Purchase Notice shall not be fully adjusted
to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase Share Limit for such Regular
Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share Limit as of the applicable
Purchase Date for such Regular Purchase Notice); provided, further, however, that the Investor’s
committed obligation under any single Regular Purchase, other than any Regular Purchase with respect to which an Alternate Adjusted
Regular Purchase Share Limit shall apply, shall not exceed Five Hundred Thousand Dollars ($500,000). If the Company delivers any
Regular Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding sentence, such
Regular Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase Shares set forth
in such Regular Purchase Notice exceeds the number of Purchase Shares which the Company is permitted to include in such Purchase
Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such
Regular Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the number of
Purchase Shares which the Company is permitted to include in such Regular Purchase Notice. The Company may deliver a Regular
Purchase Notice to the Investor as often as every Business Day, so long as (i) the Closing Sale Price of the Common Stock on such
Business Day is not less than the Floor Price and (ii) all Purchase Shares subject to all prior Regular Purchases and, if required
to have been issued prior to such Business Day pursuant to Section 5(e), all Additional Commitment Shares, have theretofore
been received by the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding the foregoing, the Company shall not
deliver any Regular Purchase Notices to the Investor during the PEA Period.
(b) Accelerated
Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition to purchases of
Purchase Shares as described in Section 2(a) above, the Company shall also have the right, but not the obligation, to direct the
Investor, by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance with this Agreement, to purchase
the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated Purchase Date therefor in accordance
with this Agreement (each such purchase, an “Accelerated Purchase”). The Company may deliver an Accelerated Purchase
Notice to the Investor only (i) on a Purchase Date on which the Company also properly submitted a Regular Purchase Notice providing for
a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect on such Purchase Date
in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase Share
Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above on
such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above),
(ii) if the Closing Sale Price of the Common Stock on the Purchase Date referred to in clause (i) above is not less than the Accelerated
Purchase Floor Price, and (iii) if all Purchase Shares subject to all Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases prior to the Purchase Date referred to in clause (i) above (as applicable) and, if required to have been issued prior to such
Purchase Date pursuant to Section 5(e), all Additional Commitment Shares, have theretofore been received by the Investor as DWAC
Shares in accordance with this Agreement. If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an
amount of Purchase Shares that exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated
Purchase Notice, such Accelerated Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase
Shares set forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company is then permitted
to include in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation), and the Investor shall
have no obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which the Company is permitted to include in
such Accelerated Purchase Notice. Within one (1) Business Day after completion of each Accelerated Purchase Date for an Accelerated Purchase,
the Investor will provide to the Company a written confirmation of such Accelerated Purchase setting forth the applicable Accelerated
Purchase Share Amount and Accelerated Purchase Price for such Accelerated Purchase (each, an “Accelerated Purchase Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any Accelerated Purchase Notices to the Investor during the PEA Period.
(c) Additional
Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition
to purchases of Purchase Shares as described in Section 2(a) and Section 2(b) above, the Company shall also have the
right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of an Additional Accelerated Purchase
Notice on an Additional Accelerated Purchase Date in accordance with this Agreement, to purchase the applicable Additional
Accelerated Purchase Share Amount at the applicable Additional Accelerated Purchase Price therefor in accordance with this Agreement
(each such purchase, an “Additional Accelerated Purchase”). The Company may deliver multiple Additional
Accelerated Purchase Notices to the Investor on an Additional Accelerated Purchase Date; provided, however, that the
Company may deliver an Additional Accelerated Purchase Notice to the Investor only (i) on a Business Day that is also the
Accelerated Purchase Date for an Accelerated Purchase with respect to which the Company properly submitted to the Investor an
Accelerated Purchase Notice in accordance with this Agreement on the applicable Purchase Date (A) for a Regular Purchase of a number
of Purchase Shares not less than the Regular Purchase Share Limit then in effect in accordance with this Agreement (including,
without limitation, giving effect to any automatic increase to the Regular Purchase Share Limit as a result of the Closing Sale
Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above on such Purchase Date and any other
adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above) and (B) on which the Closing
Sale Price of the Common Stock is not less than the Accelerated Purchase Floor Price, and (ii) if all Purchase Shares subject to all
prior Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, including, without limitation, those that have
been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with respect to which the applicable
Additional Accelerated Purchase relates, and, if required to have been issued prior to such Additional Accelerated Purchase pursuant
to Section 5(e), all Additional Commitment Shares, in each case have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice directing the Investor to
purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the Company is then
permitted to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall be void ab
initio to the extent of the amount by which the number of Purchase Shares set forth in such Additional Accelerated Purchase
Notice exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in such Additional
Accelerated Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the Investor shall
have no obligation to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share Amount which the Company is permitted
to include in such Additional Accelerated Purchase Notice. Within one (1) Business Day after completion of each Additional
Accelerated Purchase Date, the Investor will provide to the Company a written confirmation of each Additional Accelerated Purchase
on such Additional Accelerated Purchase Date setting forth the applicable Additional Accelerated Purchase Share Amount and
Additional Accelerated Purchase Price for each such Additional Accelerated Purchase on such Additional Accelerated Purchase Date
(each, an “Additional Accelerated Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not
deliver any Additional Accelerated Purchase Notices to the Investor during the PEA Period.
(d) Payment
for Purchase Shares. For each Regular Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount
with respect to such Regular Purchase as full payment for such Purchase Shares via wire transfer of immediately available funds on
the same Business Day that the Investor receives such Purchase Shares, if such Purchase Shares are received by the Investor before
1:00 p.m., Eastern time, or, if such Purchase Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business
Day. For each Accelerated Purchase and each Additional Accelerated Purchase, the Investor shall pay to the Company an amount equal
to the Purchase Amount with respect to such Accelerated Purchase and Additional Accelerated Purchase, respectively, as full payment
for such Purchase Shares via wire transfer of immediately available funds on the second (2nd) Business Day following the
date that the Investor receives such Purchase Shares. If the Company or the Transfer Agent shall fail for any reason or for no
reason to electronically transfer any Purchase Shares as DWAC Shares in respect of a Regular Purchase, an Accelerated Purchase, or
an Additional Accelerated Purchase (as applicable) within two (2) Business Days following the receipt by the Company of the Purchase
Price, Accelerated Purchase Price, and Additional Accelerated Purchase Price, respectively, therefor in compliance with this Section
2(d), and if on or after such Business Day the Investor purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Investor of such Purchase Shares that the Investor anticipated receiving from the
Company in respect of such Regular Purchase, Accelerated Purchase, or Additional Accelerated Purchase (as applicable), then the
Company shall, within two (2) Business Days after the Investor’s request, either (i) pay cash to the Investor in an amount
equal to the Investor’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so
purchased (the “Cover Price”), at which point the Company’s obligation to deliver such Purchase Shares as
DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such Purchase Shares as DWAC Shares
and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total Purchase Amount paid by the
Investor pursuant to this Agreement for all of the Purchase Shares to be purchased by the Investor in connection with such Regular
Purchase, Accelerated Purchase, and Additional Accelerated Purchase (as applicable). The Company shall not issue any fraction of a
share of Common Stock upon any Regular Purchase, Accelerated Purchase, or Additional Accelerated Purchase. If the issuance would
result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up
or down to the nearest whole share. All payments made under this Agreement shall be made in lawful currency of the United States of
America by wire transfer of immediately available funds to such account as the Company (or the Investor, as applicable) may from
time to time designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be
due by the terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due on the next
succeeding day that is a Business Day.
(e) Compliance
with Rules of Principal Market.
(i) Exchange
Cap. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase
or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number
of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed 4,474,945
(such number of shares equal to 19.99% of the shares of Common Stock outstanding immediately prior to the execution of this Agreement),
which number of shares shall be (i) reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant
to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable
rules of the Principal Market and (ii) appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split,
or other similar transaction that occurs after the date of this Agreement (such maximum number of shares, the “Exchange Cap”),
unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement,
and the stockholders of the Company have in fact approved the issuance of Common Stock as contemplated by this Agreement in accordance
with the applicable rules of the Principal Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request
its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is
not obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and
the transactions contemplated hereby at all times during the term of this Agreement.
(ii) General.
The Company shall not issue any shares of Common Stock pursuant to this Agreement if such issuance would reasonably be expected to result
in (A) a violation of the Securities Act or (B) a breach of the rules and regulations of the Principal Market. The provisions of this
Section 2(e) shall be implemented in a manner otherwise than in strict conformity with the terms hereof only if necessary to ensure
compliance with the Securities Act and the rules and regulations of the Principal Market.
(f) Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or
sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when
aggregated with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by
the Investor of more than 4.99% of the outstanding shares of Common Stock (the “Beneficial Ownership
Limitation”). Upon the written or oral request of the Investor, the Company shall promptly (but not later than twenty-four
(24) hours) confirm orally or in writing to the Investor the number of shares of Common Stock then outstanding. The Investor and the
Company shall each cooperate in good faith in the determinations required hereby and the application hereof. The Investor’s
written certification to the Company of the applicability of the Beneficial Ownership Limitation, and the resulting effect thereof
hereunder at any time, shall be conclusive with respect to the applicability thereof and such result absent manifest error.
3. INVESTOR’S
REPRESENTATIONS AND WARRANTIES.
The Investor represents and
warrants to the Company that as of the date hereof and as of the Commencement Date:
(a)
Organization. The Investor is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction
of organization, with the requisite power and authority to enter into and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligations hereunder.
(b)
Investment Purpose. The Investor is acquiring the Securities as principal for its own account and not with a view to or
for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of
such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting
the Investor’s right to sell the Securities at any time pursuant to the Registration Statement described herein or otherwise in
compliance with applicable federal and state securities laws). The Investor is acquiring the Securities hereunder in the ordinary
course of its business.
(c)
Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3)
of Regulation D promulgated under the Securities Act.
(d)
Reliance on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments,
and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the
Investor to acquire the Securities.
(e)
Information. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor
(i) is able to bear the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities,
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial condition
and business of the Company and others matters related to an investment in the Securities. Neither such inquiries nor any other due diligence
investigations conducted by the Investor or its representatives shall modify, amend, or affect the Investor’s right to rely on the
Company’s representations and warranties contained in Section 4 below. The Investor has sought such accounting, legal, and
tax advice from its own independent advisors as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities.
(f)
No Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment in the
Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(g)
Transfer or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned, or transferred
unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned, or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms
of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person
through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance
with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder.
(h)
Validity; Enforcement. This Agreement has been duly and validly authorized, executed, and delivered on behalf of the Investor
and is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability
to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies.
(i) Residency. The Investor is a resident of the State of Illinois.
(j)
No Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement
has any of the Investor, its agents, representatives, or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the Common Stock.
4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The Company represents and
warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions shall be deemed to be
a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement Date:
(a) Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Each of the Company and its Subsidiaries
is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding
has been instituted in any such jurisdiction revoking, limiting, or curtailing or seeking to revoke, limit, or curtail such power and
authority or qualification. The Company has no Subsidiaries required to be disclosed pursuant to Item 601(b)(21)(ii) of Regulation S-K,
except as set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for its fiscal year ended June 30, 2022 filed with
the SEC on October 11, 2022 (the “2022 Form 10-K”).
(b) Authorization;
Enforcement; Xxxxxxxx. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement, the Registration Rights Agreement, and each of the other Transaction Documents, and to issue the Securities in
accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance of the Initial
Commitment Shares (as defined below in Section 5(e)) and the reservation for issuance and the issuance of the Additional
Commitment Shares (as defined below in Section 5(e)) and the Purchase Shares issuable under this Agreement, have been duly
authorized by the Company’s Board of Directors and no further consent or authorization is required by the Company, its Board
of Directors, or its stockholders (except as provided in this Agreement), (iii) each of this Agreement and the Registration Rights
Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by the
Company, and (iv) each of this Agreement and the Registration Rights Agreement constitutes, and each other Transaction Document upon
its execution on behalf of the Company, shall constitute, the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, or similar laws relating to, or affecting generally, the
enforcement of creditors’ rights and remedies. The Board of Directors of the Company has approved the resolutions (the
“Signing Resolutions”) in the form agreed to by the parties that authorize this Agreement, the Registration
Rights Agreement, and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and have not
been modified or supplemented in any respect. The Company has delivered to the Investor a true and correct copy of minutes of a
meeting of the Board of Directors of the Company at which the Signing Resolutions were duly adopted by the Board of Directors of the
Company or a unanimous written consent adopting the Signing Resolutions executed by all of the members of the Board of Directors of
the Company. Except as set forth in this Agreement, no other approvals or consents of the Company’s Board of Directors, any
authorized committee thereof, or stockholders (except as provided in this Agreement) is necessary under applicable laws and the
Company’s Certificate of Incorporation or Bylaws to authorize the execution and delivery of the Transaction Documents or any
of the transactions contemplated thereby, including, but not limited to, the issuance of the Commitment Shares and the issuance of
the Purchase Shares.
(c) Capitalization.
As of the date hereof, the authorized capital stock of the Company is set forth in the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 2023. Except as disclosed in the SEC Documents (as defined below), (i) no shares of the
Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or
permitted by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls, or commitments of any character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings, or arrangements by
which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or
any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls, or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv)
there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the Securities Act (except the Registration Rights Agreement), (v) there are no outstanding securities or
instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no
contracts, commitments, understandings, or arrangements by which the Company or any of its Subsidiaries is or may become bound to
redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution or
similar provisions that will be triggered by the issuance of the Securities as described in this Agreement, and (vii) the Company
does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. The
Company has furnished to the Investor true and correct copies of the Company’s Certificate of Incorporation, as amended and as
in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Second Amended and
Restated Bylaws, as in effect on the date hereof (the “Bylaws”), and summaries of the material terms of all
securities convertible into or exercisable for Common Stock, if any, and copies of any documents containing the material rights of
the holders thereof in respect thereto that are not disclosed in the SEC Documents.
(d) Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares
shall be validly issued, fully paid, and nonassessable and free from all taxes, liens, charges, restrictions, rights of first refusal,
and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common
Stock. Upon issuance in accordance with the terms and conditions of this Agreement, the Commitment Shares (as defined in Section 5(e))
shall be validly issued, fully paid, and nonassessable and free from all taxes, liens, charges, restrictions, rights of first refusal,
and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common
Stock. 4,051,998 shares of Common Stock (subject to equitable adjustment for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction) have been duly authorized and reserved for issuance upon purchase under this Agreement as Purchase
Shares. 211,473 shares of Common Stock (subject to equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction) have been duly authorized and reserved for issuance as Additional Commitment Shares in accordance
with this Agreement.
(e) No
Conflicts. The execution, delivery, and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Initial Commitment
Shares and the reservation for issuance and issuance of the Purchase Shares and the Additional Commitment Shares) will not (i)
result in a violation of the Certificate of Incorporation, any certificate of designations, preferences and rights of any
outstanding series of preferred stock of the Company or the Bylaws or (ii) conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment,
acceleration, or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party,
or result in a violation of any law, rule, regulation, order, judgment, or decree (including federal and state securities laws and
regulations, the rules of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or
asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations,
amendments, accelerations, cancellations, and violations under clause (ii), which could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its certificate
or articles of incorporation, any certificate of designation, preferences, and rights of any outstanding series of preferred stock
of the Company or bylaws or other organizational documents. Neither the Company nor any
Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in violation of, any indenture, loan, or credit agreement or
any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator, or other
governmental authority, or (iii) is in violation of any statute, rule, ordinance, or regulation of any governmental authority,
including without limitation all foreign, federal, state, and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety, and employment and labor matters, except in each case as could not have or reasonably
be expected to result in a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required
under the Securities Act or applicable state securities laws and the rules of the Principal Market, the Company is not required to
obtain any consent, authorization, or order of, or make any filing or registration with, any court or governmental agency or any
regulatory or self-regulatory agency in order for it to execute, deliver, or perform any of its obligations under or contemplated by
the Transaction Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in this Agreement, all
consents, authorizations, orders, filings, and registrations which the Company is required to obtain pursuant to the preceding
sentence shall be obtained or effected on or prior to the Commencement Date. Except as disclosed in the SEC Documents, since one (1)
year prior to the date hereof, the Company has not received nor delivered any notices or correspondence from or to the Principal
Market, other than notices with respect to listing of additional shares of Common Stock and other routine correspondence. Except as
disclosed in the SEC Documents, the Principal Market has not commenced any delisting proceedings against the Company.
(f) SEC
Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements, and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve
(12) months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The consolidated financial statements of
the Company included or incorporated by reference in the SEC Documents, together with the related notes and schedules, present fairly,
in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified (subject to normal
year-end adjustments) and have been prepared in compliance with the requirements of the Securities Act and Exchange Act, and in conformity
with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved;
there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the SEC Documents
that are not included or incorporated by reference as required; the Company and its Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents; and all disclosures
contained or incorporated by reference in the SEC Documents regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the SEC) comply in all materials respects with Regulation G of the Exchange Act and Item 10 of Regulation
S-K under the Securities Act, to the extent applicable. The financial data set forth in the SEC Documents fairly present the information
set forth therein on a basis consistent with that of the audited financial statements contained in the SEC Documents. The interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information
called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
The Company does not have pending before the SEC any request for confidential treatment of information. The
SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act.
(g) Absence
of Certain Changes; No Undisclosed Events, Liabilities or Developments; Solvency. Except as disclosed in the SEC Documents,
since June 30, 2022, there has not been (i) any Material Adverse Effect or the occurrence of any development that could
reasonably be expected to have a Material Adverse Effect, (ii) any transaction which is material to the Company and its Subsidiaries
taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by
the Company or any Subsidiary, which is material to the Company and its Subsidiaries taken as a whole, (iv) any material change in
the capital stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above
in the ordinary course of business. Except for the issuance of the Securities
contemplated by this Agreement, no event, liability, fact, circumstance, occurrence, or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets, or
financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one (1) Business Day prior to the date that this
representation is made. The Company has not taken any steps, and does not currently expect to take any steps, to seek protection
pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally
able to pay its debts as they become due.
(h) Absence
of Litigation. Except as set forth in the SEC Documents, there are no actions, suits or proceedings by or before any Governmental
Authority pending, or, to the Company’s knowledge, any audits or investigations by or before any Governmental Authority, to which
the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject that, individually
or in the aggregate, if determined adversely to the Company or its Subsidiaries, would reasonably be expected to have a Material Adverse
Effect and, to the Company’s knowledge, no such actions, suits, proceedings, audits or investigations are threatened or contemplated
by any Governmental Authority or threatened by others; and (i) there are no current or pending audits, investigations, actions, suits
or proceedings by or before any Governmental Authority that are required under the Securities Act to be described in the SEC Documents
that are not so described; and (ii) there are no contracts or other documents that are required under the Securities Act to be filed as
exhibits to the SEC Documents that are not so filed. “Governmental Authority”
means (i) any federal, state, local, municipal, national or international government or governmental authority, regulatory or administrative
agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public
or private); (ii) any self-regulatory organization (including any stock exchange or quotation system); or (iii) any political subdivision
of any of the foregoing.
(i) Acknowledgment
Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated hereby and thereby and any advice given by the Investor or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Investor’s
purchase of the Securities. The Company further represents to the Investor that the Company’s decision to enter into the Transaction
Documents has been based solely on the independent evaluation by the Company and its representatives and advisors.
(j) No
General Solicitation; No Integrated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities
Act) in connection with the offer or sale of the Securities. Neither the Company, nor or any of its affiliates, nor any Person acting
on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of the offer and sale of any of the Securities under the Securities Act, whether through
integration with prior offerings or otherwise, or cause this offering of the Securities to be integrated with prior offerings by the Company
in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the securities of the
Company are listed or designated. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the
Principal Market.
(k) Intellectual
Property Rights. Except as disclosed in the SEC Documents, the Company and its Subsidiaries own, possess, license or have other
rights to use, or could obtain on commercially reasonable terms, all foreign and domestic patents, patent applications, trade and
service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as now conducted except to the extent that the failure to own, possess,
license or otherwise hold adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. Except as disclosed in the SEC Documents, (i) to the Company’s
knowledge, there are no rights of third parties to any such Intellectual Property owned by the Company and its Subsidiaries,
except for licenses granted in the ordinary course to third parties, or that could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect; (ii) to the Company’s knowledge, there is no infringement by third parties
of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual
Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or
claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any
patent, trademark, copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there
is no third-party U.S. patent or published U.S. patent application which contains claims for which an Interference Proceeding (as
defined in 35 U.S.C. § 135), or the equivalent in any other jurisdiction, has been commenced against any patent or patent
application described in the SEC Documents as being owned by or licensed to the Company; and (vii) the Company and its Subsidiaries
have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or such
Subsidiary, and all such agreements are in full force and effect, except, in the case of any of clauses (i)-(vi) above, for any such
infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(l) Environmental
Laws. Except as set forth in the SEC Documents, the Company and its Subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”);
(ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses as described in the SEC Documents; and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(m) Title
to Real and Personal Property. Except as set forth in the SEC Documents, the Company and its Subsidiaries have good and
marketable title in fee simple to all items of real property owned by them, good and valid title to all personal property described
in the SEC Documents as being owned by them that are material to the businesses of the Company or such Subsidiary, in each case free
and clear of all mortgages, liens, encumbrances and claims, except those matters that (i) do not materially interfere with the use
made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Any real or personal property described in the SEC
Documents as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases,
free and clear of all mortgages, liens, encumbrances and claims other than mortgages, liens, encumbrances and claims as described in
the SEC Documents, except those matters that (A) do not materially interfere with the use made or proposed to be made of such
property by the Company or any of its Subsidiaries or (B) would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to
such properties), except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to
interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or
otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received from any Governmental
Authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries, and
the Company knows of no such condemnation or zoning change which is threatened, except for such that would not reasonably be
expected to interfere in any material respect with the use made and proposed to be made of such property by the Company and its
Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.
(n) Insurance.
The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts and covering such risks as the Company and each Subsidiary believe are adequate and as is customary for companies of similar size
as the Company in the businesses in which the Company and its Subsidiaries are engaged, including, but not limited to, directors and officers
insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
without a significant increase in cost.
(o) Regulatory
Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, registrations, exemptions, clearances, consents
and other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business
now operated by the Company (collectively, “Governmental Licenses”), including without limitation, all such Governmental
Licenses required by the U.S. Food and Drug Administration (“FDA”) or any similar state or foreign regulatory authority
or private accreditation body (collectively, the “Regulatory Agencies”), except where the failure so to possess would
not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries are in compliance with the
terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company has fulfilled and performed
all of its material obligations with respect to the Governmental Licenses and, to the Company’s knowledge, no event has occurred
which would result, or after notice or lapse of time could result, in revocation or termination thereof or results in any other material
impairment of the rights of the holder of any Governmental License. The Company has not received any written notice of proceedings
relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(p) Regulatory
Filings. Except as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries has failed to file with the
applicable Governmental Authority (including but not limited to the FDA or any foreign, federal, state or local Governmental
Authority performing functions similar to those performed by the FDA) any required filing, declaration, listing, registration,
report or submission, except for such failures that, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; except as disclosed in the SEC Documents, all such filings, declarations, listings, registrations, reports
or submissions were in material compliance with applicable laws when filed and no deficiencies have been asserted by any applicable
regulatory authority with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any
deficiencies that, individually or in the aggregate, would not have a Material Adverse Effect. The Company has operated for
the past five (5) years, and currently is, in all material respects, in compliance with all Applicable Laws (as defined
below).
(q) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in
good faith, except where the failure to so file or pay would not reasonably be expected to have a Material Adverse Effect. Except
as otherwise disclosed in or contemplated by the SEC Documents, no tax deficiency has been determined adversely to the Company or any
of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
The Company has no knowledge of any federal, state, or other governmental tax deficiency, penalty or assessment which has been or
might be asserted or threatened against it which would reasonably be expected to have a Material Adverse Effect.
(r) Transactions
With Affiliates and Employees. Except as disclosed in the SEC Documents, none of the officers
or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary
is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers, and directors),
including any contract, agreement, or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or
from any officer, director, or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, stockholder, member, or partner, in each case in excess of One
Hundred Twenty Thousand Dollars ($120,000) other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company, and (iii) other employee benefits, including stock option agreements under any stock option
plan of the Company.
(s) Application
of Takeover Protections. The Company and its Board of Directors have taken or will take prior to the Commencement Date all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement), or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the state of
its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the Securities.
(t) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will be
timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person authorized to act on its behalf
has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material,
non-public information which is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company understands
and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities of the
Company. All of the disclosure furnished by or on behalf of the Company by a Person authorized by the Company to the
Investor regarding the Company, its business, and the transactions contemplated hereby is true and correct and does not contain any
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the
twelve (12) months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that the
Investor neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other
than those specifically set forth in Section 3 hereof.
(u) Foreign
Corrupt Practices. (i) Neither the Company nor its Subsidiaries, nor to the Company’s knowledge any director, officer, or employee
of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company
or any Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully
to disclose any contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate
for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of
any applicable law or of the character required to be disclosed in the SEC Documents; (ii) the Company has not offered, or caused any
placement agent to offer, Common Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company
or any Subsidiary to alter the customer’s or supplier’s level or type of business with the Company or any Subsidiary or (B)
a trade journalist or publication to write or publish favorable information about the Company or any Subsidiary or any of their respective
products or services; and (iii) neither the Company nor any Subsidiary nor any director, officer or employee of the Company or any Subsidiary
nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A)
violated or is in violation of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable
anti-bribery or anti-corruption law (collectively, “Anti-Corruption Laws”), (B) promised, offered, provided, attempted
to provide or authorized the provision of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining
business, influencing any act or decision of the recipient or securing any improper advantage, or (C) made any payment of funds of the
Company or any Subsidiary or received or retained any funds in violation of any Anti-Corruption Laws.
(v) DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (FAST)
Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer (FAST)
Program.
(w) Xxxxxxxx-Xxxxx
Act. There is, and has been, no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (as amended, the “Xxxxxxxx-Xxxxx Act”)
and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it or furnished by it to the SEC. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in
the Xxxxxxxx-Xxxxx Act.
(x) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses in its internal control over financial reporting (other than as
set forth in the SEC Documents). Since June 30, 2022, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting (other than as set forth in the SEC Documents). The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and
procedures to ensure that material information relating to the Company and each of its Subsidiaries is made known to the certifying
officers by others within those entities, particularly during the period in which the Company’s Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying
officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90 days
prior to the filing date of 2022 Form 10-K (such date, the “Evaluation Date”). The Company presented in the
2022 Form 10-K the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date and the disclosure controls and procedures are effective. Since the Evaluation
Date, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors that could reasonably be likely to
materially affect the Company’s internal controls.
(y) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor, or
consultant, finder, placement agent, investment banker, bank, or other Person with respect to the transactions contemplated by the Transaction
Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section 4(y) that may be due in connection with the transactions contemplated by
the Transaction Documents.
(z) Investment
Company. Neither the Company or its Subsidiaries is or, after giving effect to the offering
and sale of the Securities to the Investor pursuant to this Agreement, will be, an “investment company” or an entity “controlled”
by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(aa) Listing and Maintenance
Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock pursuant to the
Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating such registration. The
issued and outstanding shares of Common Stock are listed and posted for trading on the Principal Market, and the Company is in compliance
in all respects with the current listing requirements of the Principal Market; and the Securities will be listed and posted for trading
on the Principal Market at or prior to Commencement, with respect to the Commitment Shares, and prior to the time of sale to the Investor
pursuant to this Agreement, with respect to the Purchase Shares. Except as disclosed in the SEC Documents, the Company has not, in the
twelve (12) months preceding the date hereof, received any notice from any Person to the effect that the Company is not in compliance
with the listing or maintenance requirements of the Principal Market. Except as disclosed in the SEC Documents, the Company is, and has
no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
(bb) Accountants.
CohnReznick LLP (the “Accountant”), whose report on the consolidated financial statements of the Company is filed with
the SEC as part of the 2022 Form 10-K filed with the SEC, is and, during the periods covered by its report, was an independent registered
public accounting firm as required by the Securities Act, the Exchange Act, and the rules of the Public Company Accounting Oversight Board.
To the Company’s knowledge, the Accountant is in compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X under the Securities Act.
(cc) No Market Manipulation.
The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities,
or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.
(dd) Shell Company Status.
The Company is not currently, and has never been, an issuer identified in Rule 144(i)(1) under the Securities Act.
(ee) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee, or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department.
(ff) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance
with applicable financial record keeping and reporting requirements of applicable law, including the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by
any Governmental Authority (collectively, the “Money Laundering Laws”); and no action or suit by or before any Governmental
Authority involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.
(gg) Labor Relations.
Neither the Company nor any of its Subsidiaries employs any person represented by a union or collective bargaining unit. No labor
disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is threatened
which would reasonably be expected to have a Material Adverse Effect.
(hh) ERISA. To the
knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company or any
of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and
the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect to any
such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each such plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions. Each of the material employee benefit plans of the Company complies in all material
respects with applicable law.
(ii)
Cybersecurity. (i)(x) To the Company’s knowledge, there has been no security
breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information technology and
computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers, vendors,
and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and
Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or
condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii)
the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules,
and regulations of any court or arbitrator or governmental or regulatory authority, internal policies, and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation, or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect;
(iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect
its material confidential information and the integrity, continuous operation, redundancy, and security of all IT Systems and Data;
and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with customary
industry standards and practices.
(jj) Clinical
Studies. The preclinical studies and tests and, if applicable, clinical trials described in the SEC Documents were, and, if
still pending, are being conducted in all material respects in accordance with the experimental protocols, procedures and controls pursuant
to, where applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed
by the Company; the descriptions of such studies, tests and trials, and the results thereof, contained in the SEC Documents are accurate
and complete in all material respects; the Company is not aware of any tests, studies or trials not described in the SEC Documents, the
results of which reasonably call into question in any material respect the results of the tests, studies and trials described in the SEC
Documents; and the Company has not received any written notice or written correspondence from the FDA or any foreign, state or local Governmental
Authority exercising comparable authority or any institutional review board or comparable authority requiring the termination, suspension,
clinical hold or material modification of any tests, studies or trials.
(kk) Enforceability
of Material Agreements. Except as set forth in the SEC Documents, the descriptions in the SEC Documents of the material agreements
between the Company or any of its Subsidiaries, on the one hand, and any one or more third parties, on the other hand, therein described
present fairly in all material respects the information required to be shown, and there are no such material agreements of a character
required to be described in the SEC Documents or to be filed as exhibits thereto which are not described or filed as required; all
material agreements between the Company or any of its Subsidiaries, on the one hand, and any one or more third parties, on the other hand,
expressly referenced in the SEC Documents are legal, valid, and binding obligations of the Company or one or more of its Subsidiaries,
enforceable in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors’ rights generally and by general equitable principles, and except where
the failure of any such material agreement to be enforceable in accordance with its terms would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(ll) Compliance
with Applicable Laws. Each of the Company and its Subsidiaries: (i) is and at all times has been in compliance with all
statutes, rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured
or distributed by the Company or its Subsidiaries, including, without limitation, (i) the Federal Food, Drug, and Cosmetic Act and
the regulations promulgated thereunder; (ii) all applicable federal, state, local and all applicable foreign health care related
fraud and abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the
U.S. Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et
seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse,
including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal provisions under the U.S. Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d et seq.), the
exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C. § 1320a-7a), the statutes,
regulations and directives of applicable government funded or sponsored healthcare programs, and the regulations promulgated
pursuant to such statutes; (iii) the Standards for Privacy of Individually Identifiable Health Information, the Security Standards,
and the Standards for Electronic Transactions and Code Sets promulgated under HIPAA, the Health Information Technology for Economic
and Clinical Health Act (“HITECH Act”) (42 U.S.C. Section 17921 et seq.), and the regulations promulgated
thereunder and any state or non-U.S. counterpart thereof or other law or regulation the purpose of which is to protect the privacy
of individuals or prescribers; (iv) Medicare (Title XVIII of the Social Security Act); (v) Medicaid (Title XIX of the Social
Security Act); and (vi) any and all other applicable health care laws and regulations, (collectively, the “Applicable
Laws”), except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(ii) has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other written
correspondence or notice from the FDA or any other Governmental Authority alleging or asserting noncompliance in any material
respect with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or
amendments thereto required by any such Applicable Laws (“Authorizations”); (iii) possesses all material
Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of any term of any
such Authorizations; (iv) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any Governmental Authority or third party, including third party payor, alleging
that any product operation or activity is in violation of any Applicable Laws, Authorizations or contractual obligations and has no
knowledge that any such Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit,
investigation or proceeding; (v) has not received written notice that any Governmental Authority has taken, is taking or
intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental
Authority is considering such action; (vi) has filed, obtained, maintained or submitted all material reports, documents, forms,
notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or
Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent
submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear healthcare
provider” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged
product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate
any such notice or action.
(mm) Smaller Reporting
Company Status. As of the Closing Date, the Company was, and as of the Commencement Date, the Company believes it will be, a “smaller
reporting company” as defined in Rule 12b-2 of the Exchange Act.
(nn) Off-Balance
Sheet Arrangements. There are no transactions, arrangements or other relationships between and/or among the Company, and/or
any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited
purpose entity (each, an “Off-Balance Sheet Transaction”) that would reasonably be expected to affect materially the
Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance Sheet Transactions
described in the SEC’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations
(Release Nos. 33-8056; 34-45321; FR-61), required to be described in the SEC Documents which have not been described as required.
(oo) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by
Section 27A of the Securities Act or Section 21E of the Exchange Act, or as defined by any other applicable securities
laws) contained in the SEC Documents (i) was so included by the Company in good faith and with reasonable basis after due
consideration by the Company of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is
accompanied by meaningful cautionary statements identifying those factors that could cause actual results to differ materially from
those in such forward-looking statement. No such statement was made with the knowledge of an executive officer or director of
the Company that it was false or misleading.
(pp) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the SEC Documents are based on or
derived from sources that the Company believes to be reliable and accurate or represent the Company’s good faith estimates that
are made on the basis of data derived from such sources.
(qq) No Disqualification
Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the
Company participating in the offering contemplated hereby, any beneficial owner of twenty percent (20%) or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under
the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a
“Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities
Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
5. COVENANTS.
(a) Filing
of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange Act, file
with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions of, the
Transaction Documents (the “Current Report”). The Company shall also file with the SEC, within twenty (20) Business
Days from the date hereof, a new registration statement (the “Registration Statement”) covering only the resale of
the Purchase Shares and all of the Commitment Shares, in accordance with the terms of the Registration Rights Agreement between the Company
and the Investor, dated as of the date hereof (the “Registration Rights Agreement”). The Company shall permit the Investor
to review and comment upon (1) the final pre-filing draft version of the Current Report at least two (2) Business Days prior to its
filing with the SEC, and the Company shall give due consideration to all such comments. The Investor shall use its reasonable best efforts
to comment upon the Current Report within one (1) Business Day from the date the Investor receives the final versions thereof from
the Company. The Investor shall cooperate with the Company as reasonably requested by the Company in connection with the preparation and
filing of the Current Report with the SEC.
(b) Blue
Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to register
or qualify (i) the issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under this Agreement and (ii)
any subsequent resale of all Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable securities or “Blue
Sky” laws of the states of the United States in such states as is reasonably requested by the Investor from time to time, and shall
provide evidence of any such action so taken to the Investor.
(c) Listing/DTC.
The Company shall promptly secure the listing of all of the Purchase Shares and Commitment Shares to be issued to the Investor
hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange or
automated quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to
maintain, so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable
hereunder. The Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market
and shall comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules and
regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be
expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall promptly, and in no
event later than the following Business Day, provide to the Investor copies of any notices it receives from any Person regarding the
continued eligibility of the Common Stock for listing on the Principal Market; provided, however, that the Company
shall not be required to provide the Investor copies of any such notice that the Company reasonably believes constitutes material
non-public information and the Company would not be required to publicly disclose such notice in any report or statement filed with
the SEC and under the Exchange Act or the Securities Act. The Company shall pay all fees and expenses in connection with satisfying
its obligations under this Section 5(c). The Company shall take all action necessary to ensure that its Common Stock can be
transferred electronically as DWAC Shares.
(d) Prohibition
of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending on the date of
termination of this Agreement as provided in Section 11, the Investor and its agents, representatives, and affiliates shall not
in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined in Rule
200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with
respect to the Common Stock.
(e) Issuance
of Commitment Shares In consideration for the Investor’s execution and delivery of this Agreement, (i) the Company shall cause
to be issued to the Investor a total of 211,474 shares of Common Stock (the “Initial Commitment Shares”) not later
than the close of business on the next Business Day immediately following the date of this Agreement and shall, concurrently with the
execution of this Agreement on the date hereof, deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with respect
to the issuance of such Initial Commitment Shares to the Investor within such time period; and (ii) the Company shall cause to be issued
to the Investor a total of 211,473 shares of Common Stock (the “Additional Commitment Shares” and, collectively with
the Initial Commitment Shares, the “Commitment Shares”), concurrently with the Investor’s purchase of an aggregate
amount of Purchase Shares having an aggregate gross purchase price to the Investor equal to $5,000,000, pursuant to all Regular Purchases,
Accelerated Purchases and Additional Accelerated Purchases (as applicable) effected pursuant to this Agreement. The Additional Commitment
Shares shall be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction.
For the avoidance of doubt, (1) all of the Initial Commitment Shares shall be fully earned as of the date of this Agreement, whether or
not the Commencement shall occur or any Purchase Shares are purchased by the Investor under this Agreement and irrespective of any subsequent
termination of this Agreement and (2) the Additional Commitment Shares shall be fully earned as of the date of their issuance pursuant
to this Agreement, whether or not any additional Purchase Shares are purchased thereafter by the Investor under this Agreement and irrespective
of any subsequent termination of this Agreement.
(f) Due
Diligence; Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem
appropriate and upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal
business hours. The Company and its officers and employees shall provide information and reasonably cooperate with the Investor in
connection with any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party
hereto agrees not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential
Information for any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party
hereto acknowledges that the Confidential Information shall remain the property of the disclosing party and agrees that it shall
take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the other party. The Company
confirms that neither it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any
information that constitutes or might constitute material, non-public information, unless a simultaneous public announcement thereof
is made by the Company in the manner contemplated by Regulation FD. In the event of a breach of the foregoing covenant by the
Company or any Person acting on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any
other remedy provided herein or in the other Transaction Documents, if the Investor is holding any Securities at the time of the
disclosure of material, non-public information, the Investor shall have the right to make a public disclosure, in the form of a
press release, public advertisement, or otherwise, of such material, non-public information without the prior approval by the
Company; provided the Investor shall have first provided notice to the Company that it believes it has received information that
constitutes material, non-public information, the Company shall have at least twenty-four (24) hours to publicly disclose such
material, non-public information prior to any such disclosure by the Investor, the Company shall have failed to demonstrate to the
Investor in writing within such time period that such information does not constitute material, non-public information, and the
Company shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall not
have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders,
or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing
covenants in effecting transactions in securities of the Company.
(g) Purchase
Records. The Investor and the Company shall each maintain records showing the remaining Available Amount at any given time and the
dates and Purchase Amounts for each Regular Purchase, Accelerated Purchase, and Additional Accelerated Purchase or shall use such other
method, reasonably satisfactory to the Investor and the Company.
(h) Taxes.
The Company shall pay any and all transfer, stamp, or similar taxes that may be payable with respect to the issuance and delivery of any
shares of Common Stock to the Investor made under this Agreement.
(i) Use
of Proceeds. The Company will use the net proceeds from the offering as described in the Registration Statement or the SEC Documents.
(j) Other
Transactions. The Company shall not enter into, announce, or recommend to its stockholders any agreement, plan, arrangement, or transaction
in or of which the terms thereof would restrict, materially delay, conflict with, or impair the ability or right of the Company to perform
its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver the Purchase
Shares and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
(k) Integration.
From and after the date of this Agreement, neither the Company, nor any of its affiliates will, and the Company shall use its reasonable
best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or sales of any security or
solicit any offers to buy any security, under circumstances that would (i) require registration of the offer and sale by the Company to
the Investor of any of the Securities under the Securities Act, or (ii) cause this offering of the Securities by the Company to the Investor
to be integrated with other offerings by the Company in a manner that would require stockholder approval pursuant to the rules of the
Principal Market on which any of the securities of the Company are listed or designated, unless in the case of this clause (ii), stockholder
approval is obtained before the closing of such subsequent transaction in accordance with the rules of such Principal Market.
(l) No
Variable Rate Transactions. From and after the date of this Agreement until the earlier of (i) the Maturity Date and (ii) the
six (6) month anniversary of the effective date of termination of this Agreement by the Company pursuant to Section 11(c) or
by the Investor pursuant to Section 11(b), the Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction, other than in connection with an Exempt Issuance. The Investor shall be entitled to
obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition
to any right to collect damages, without the necessity of showing economic loss and without any bond
or other security being required. “Common Stock Equivalents” means any securities of the Company or its
Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt,
preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock. “Variable Rate Transaction” means a
transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a
conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or
quotations for the Common Stock at any time after the initial issuance of such debt or equity securities (including, without
limitation, pursuant to any “cashless exercise” provision), or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of
specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock
(including, without limitation, any “full ratchet” or “weighted average” anti-dilution provisions), (ii)
issues or sells any debt or equity securities, including without limitation, Common Stock or Common Stock Equivalents, either (A) at
a price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the
occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the
Common Stock, or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or
mechanism (including, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of
additional debt or equity securities of the Company or the payment of cash by the Company, or (iii) enters into any agreement,
including, but not limited to, an “equity line of credit”, “at-the-market offering” or other continuous
offering or similar offering of Common Stock or Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock
Equivalents at a future determined price. “Exempt Issuance” means the issuance of (a) Common Stock, options or
other equity incentive awards to employees, officers, directors or vendors of the Company pursuant to any equity incentive plan or
stock purchase plan duly adopted for such purpose, by the Board of Directors of the Company or a majority of the members of a
committee of directors established for such purpose, (b) (1) any Securities issued to the Investor pursuant to this Agreement, (2)
any securities issued upon the exercise or exchange of or conversion of any shares of Common Stock or Common Stock Equivalents held
by the Investor at any time, (3) shares of Common Stock, Common Stock Equivalents or other securities issued to the Investor
pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, if any, or (4) any
securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date
of this Agreement, provided that such securities referred to in this clause (4) have not been amended since the date of this
Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such
securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic
transactions approved by the Board of Directors or a majority of the members of a committee of directors established for such
purpose, which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate
Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is,
itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and
shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is
investing in securities, or (d) Common Stock issued pursuant to an “at-the-market offering” under Rule 415(a)(4) under
the Securities Act by the Company exclusively through one or more registered broker-dealers acting primarily as agent(s) of
the Company pursuant to a written equity distribution or sales agreement between the Company and such registered
broker-dealer(s).
6. TRANSFER
AGENT INSTRUCTIONS.
(a) On
the date of this Agreement, the Company shall issue irrevocable instructions to the Transfer Agent substantially in the form attached
hereto as Exhibit C to issue the Initial Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Transfer Agent Instructions”). The certificate(s) or book-entry statement(s) representing the Initial Commitment Shares, except
as set forth below, shall bear the following restrictive legend (the “Restrictive Legend”):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.”
(b) On
the earlier of (i) the Commencement Date and (ii) such time that the Investor shall request, provided all conditions of Rule 144
under the Securities Act are met, the Company shall, no later than one (1) Business Day following the delivery by the Investor to
the Company or the Transfer Agent of one or more legended certificates or book-entry statements representing the Initial Commitment
Shares (which certificates or book-entry statements the Investor shall promptly deliver on or prior to the first to occur of the
events described in clauses (i) and (ii) of this sentence), as directed by the Investor, issue and deliver (or cause to be issued
and delivered) to the Investor, as requested by the Investor, either: (A) a certificate or book-entry statement representing such
Initial Commitment Shares that is free from all restrictive and other legends; or (B) a number of shares of Common Stock equal to
the number of Initial Commitment Shares represented by the certificate(s) or book-entry statement(s) so delivered by the Investor as
DWAC Shares. The Company shall take all actions to carry out the intent and accomplish the purposes of the immediately preceding
sentence, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions, and instructions
to the Transfer Agent, and any successor transfer agent of the Company, as may be requested from time to time by the Investor or
necessary or desirable to carry out the intent and accomplish the purposes of the immediately preceding sentence. On the
Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (x) irrevocable instructions in
the form substantially similar to those used by the Investor in substantially similar transactions (the “Commencement
Irrevocable Transfer Agent Instructions”) and (y) the notice of effectiveness of the Registration Statement in the form
attached as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness of Registration
Statement”), in each case to issue the Initial Commitment Shares, the Additional Commitment Shares and the Purchase Shares
in accordance with the terms of this Agreement and the Registration Rights Agreement. All Purchase Shares, Initial Commitment Shares
and Additional Commitment Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant to this
Agreement shall be issued only as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement is
effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of
Registration Statement referred to in this Section 6(b) will be given by the Company to the Transfer Agent with respect to
the Purchase Shares, the Initial Commitment Shares or the Additional Commitment Shares from and after Commencement, and the Purchase
Shares, the Initial Commitment Shares and the Additional Commitment Shares covered by the Registration Statement shall otherwise be
freely transferable on the books and records of the Company. If the Investor effects a sale, assignment, or transfer of the Purchase
Shares, the Initial Commitment Shares or the Additional Commitment Shares, the Company shall permit the transfer and shall promptly
instruct the Transfer Agent (and any subsequent transfer agent) to issue DWAC Shares in such name and in such denominations as
specified by the Investor to effect such sale, transfer or assignment. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Investor. Accordingly, the Company acknowledges that the remedy at law for
a breach of its obligations under this Section 6 will be inadequate and agrees, in the event of a breach or threatened breach
by the Company of the provisions of this Section 6, that the Investor shall be entitled, in addition to all other available
remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity
of showing economic loss and without any bond or other security being required. The Company agrees that if the Company fails to
fully comply with the provisions of this Section 6(b) within five (5) Business Days of the Investor providing the deliveries
referred to above, the Company shall, at the Investor’s written instruction, purchase such shares of Common Stock containing
the Restrictive Legend from the Investor at the greater of the (i) purchase price paid for such shares of Common Stock (as
applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s written instruction.
7. CONDITIONS TO THE
COMPANY'S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK.
The right of the Company hereunder
to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction of each of the following conditions:
(a) The Investor
shall have executed each of the Transaction Documents and delivered the same to the Company;
(b) The Registration
Statement covering the resale of the Purchase Shares, all of the Initial Commitment Shares and all of the Additional Commitment Shares
shall have been declared effective under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall
be pending or threatened by the SEC; and
(c) The representations
and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as of the Commencement Date
as though made at that time.
8. CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.
The obligation of the Investor
to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions on or prior to the Commencement
Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after
the Commencement has occurred:
(a) The
Company shall have executed each of the Transaction Documents and delivered the same to the Investor;
(b) The
Company shall have issued or caused to be issued to the Investor (i) one or more certificates or book-entry statements representing
the Initial Commitment Shares free from all restrictive and other legends or (ii) a number of shares of Common Stock equal to the
number of Initial Commitment Shares as DWAC Shares, in each case in accordance with Section 6(b);
(c) The
Common Stock shall be listed or quoted on the Principal Market, subject only to customary listing conditions, trading in the Common Stock
shall not have been within the last three hundred sixty-five (365) days suspended by the SEC, the Principal Market, and all Securities
to be issued by the Company to the Investor pursuant to this Agreement shall have been approved for listing or quotation on the Principal
Market in accordance with the applicable rules and regulations of the Principal Market, subject only to official notice of issuance and
any standard listing conditions for transactions of this nature;
(d) The
Investor shall have received the opinions and negative assurances of the Company’s legal counsel, dated as of the Commencement Date,
substantially in the forms agreed by the parties hereto;
(e) The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 4 above, in which case, the portion of such representations
and warranties so qualified shall be true and correct without further qualification) as of the date hereof and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such date) and the Company shall have performed, satisfied, and complied with the covenants, agreements, and conditions
required by the Transaction Documents to be performed, satisfied, or complied with by the Company at or prior to the Commencement Date.
The Investor shall have received a certificate, executed by the Chief Executive Officer, President, or Chief Financial Officer of the
Company, dated as of the Commencement Date, to the foregoing effect in the form attached hereto as Exhibit A;
(f) The
Board of Directors of the Company shall have adopted resolutions in substantially the form agreed to by the parties, which shall be in
full force and effect without any amendment or supplement thereto as of the Commencement Date;
(g) As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, (i) solely for the purpose
of effecting purchases of Purchase Shares hereunder, 4,051,998 shares of Common Stock, and (ii) solely for the purpose of effecting the
issuance of Additional Commitment Shares hereunder, 211,473 shares of Common Stock;
(h) The
Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement each shall have been delivered
to and acknowledged in writing by the Company and the Company’s Transfer Agent (or any successor transfer agent);
(i) The
Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the State
of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days of the Commencement Date;
(j) The
Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State
of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k) The
Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of the
Commencement Date, in the form attached hereto as Exhibit B;
(l) The
Registration Statement covering the resale of the Purchase Shares, all of the Initial Commitment Shares and all of the Additional Commitment
Shares shall have been declared effective under the Securities Act by the SEC, and no stop order with respect to the Registration Statement
shall be pending or threatened by the SEC. The Company shall have prepared and filed with the SEC, not later than two (2) Business Day
after the effective date of the Registration Statement, a final and complete prospectus (the preliminary form of which shall be included
in the Registration Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current
and available for the resale by the Investor of all of the Securities covered thereby. The Current Report shall have been filed with the
SEC as required pursuant to Section 5(a). All reports, schedules, registrations, forms, statements, information and other documents
required to have been filed by the Company with the SEC at or prior to the Commencement Date pursuant to the reporting requirements of
the Exchange Act shall have been filed with the SEC within the applicable time periods prescribed for such filings under the Exchange
Act;
(m) No
Suspension Event has occurred and is continuing, or any event which, after notice and/or lapse of time, would become a Suspension Event
has occurred and is continuing;
(n) All
federal, state, and local governmental laws, rules, and regulations applicable to the transactions contemplated by the Transaction Documents
and necessary for the execution, delivery, and performance of the Transaction Documents and the consummation of the transactions contemplated
thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders of, and all filings
and registrations with, all federal, state, and local courts or governmental agencies and all federal, state, and local regulatory or
self-regulatory agencies necessary for the execution, delivery, and performance of the Transaction Documents and the consummation of the
transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation,
in each case those required under the Securities Act, the Exchange Act, applicable state securities, or “Blue Sky” laws or
applicable rules and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market, or any state securities
regulators;
(o) No
statute, regulation, order, decree, writ, ruling, or injunction shall have been enacted, entered, promulgated, threatened, or endorsed
by any federal, state, or local court or governmental authority of competent jurisdiction which prohibits the consummation of or which
would materially modify or delay any of the transactions contemplated by the Transaction Documents; and
(p) No
action, suit, or proceeding before any federal, state, local, or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental
authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors, or
affiliates of the Company, seeking to restrain, prevent, or change the transactions contemplated by the Transaction Documents, or seeking
material damages in connection with such transactions.
9. INDEMNIFICATION.
In consideration of the
Investor’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder and in addition to all
of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify, and hold
harmless the Investor and all of its affiliates, stockholders, members, officers, directors, employees, and direct or indirect
investors and any of the foregoing Person’s agents or other representatives (including, without limitation, those retained in
connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and
against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities, and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction
Documents or any other certificate, instrument, or document contemplated hereby or thereby, or (c) any cause of action, suit, or
claim brought or made against such Indemnitee and arising out of or resulting from the execution, delivery, performance, or
enforcement of the Transaction Documents or any other certificate, instrument, or document contemplated hereby or thereby, other
than, in the case of clause (c), with respect to Indemnified Liabilities which directly and primarily result from the fraud, gross
negligence, or willful misconduct of an Indemnitee. The indemnity in this Section 9 shall not apply to amounts paid in
settlement of any claim if such settlement is effected without the prior written consent of the Company, which consent shall not be
unreasonably withheld, conditioned, or delayed. To the extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. Payment under this indemnification shall be made within thirty (30) days from the date
Investor makes written request for it. A certificate containing reasonable detail as to the amount of such indemnification submitted
to the Company by Investor shall be conclusive evidence, absent manifest error, of the amount due from the Company to Investor. If
any action shall be brought against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such
Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with
counsel of its own choosing reasonably acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such
Indemnitee, except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel, or (iii) in
such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the
position of the Company and the position of such Indemnitee, in which case the Company shall be responsible for the reasonable fees
and expenses of no more than one such separate counsel.
10. SUSPENSION
EVENTS.
A “Suspension Event”
shall be deemed to have occurred at any time as any of the following events occurs:
(a) the
effectiveness of a registration statement registering the resale of the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof) is unavailable
to the Investor for resale of any or all of the Securities to be issued to the Investor under the Transaction Documents, and such lapse
or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business Days
in any three hundred sixty-five (365)-day period, but excluding a lapse or unavailability where (i) the Company terminates a registration
statement after the Investor has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company
supersedes one registration statement with another registration statement, including (without limitation) by terminating a prior registration
statement when it is effectively replaced with a new registration statement covering Securities (provided in the case of this clause (ii)
that all of the Securities covered by the superseded (or terminated) registration statement that have not theretofore been resold are
included in the superseding (or new) registration statement);
(b) the
suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company may
not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c) the
delisting of the Common Stock from the NYSE American LLC (or any nationally recognized successor thereto), provided, however, that the
Common Stock is not immediately thereafter trading on The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market,
the New York Stock Exchange, the NYSE Arca, or the OTCQX or OTCQB operated by the OTC Markets Group Inc. (or any nationally recognized
successors thereto);
(d) the
failure for any reason by the Transfer Agent to issue (i) the Initial Commitment Shares to the Investor within two (2) Business Days after
the Closing Date, (ii) the Additional Commitment Shares to the Investor within two (2) Business Days after the date on which the Investor
is entitled to receive such Additional Commitment Shares pursuant to Section 5(e) hereof, or (iii) Purchase Shares to the Investor
within two (2) Business Days after the Regular Purchase Date, Accelerated Purchase Date or Additional Accelerated Purchase Date, as applicable,
on which the Investor is entitled to receive such Purchase Shares;
(e) the
Company breaches any representation, warranty, covenant, or other term or condition under any Transaction Document if such breach would
reasonably be expected to have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable,
only if such breach continues for a period of at least five (5) Business Days;
(f) if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g) if
the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable to pay its debts as the
same become due;
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders the liquidation of the
Company or any Subsidiary;
(i) if
at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or
(j) if
at any time after the Commencement Date, the Exchange Cap is reached, and the stockholder approval referred to in Section 2(e)(i)
has not been obtained in accordance with the applicable rules of the Principal Market.
In addition to any other rights and remedies under
applicable law and this Agreement, so long as a Suspension Event has occurred and is continuing, or if any event which, after notice and/or
lapse of time, would reasonably be expected to become a Suspension Event has occurred and is continuing, the Company shall not deliver
to the Investor any Regular Purchase Notice, Accelerated Purchase Notice, or Additional Accelerated Purchase Notice.
11. TERMINATION
This Agreement may be terminated
only as follows:
(a) If
pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against
the Company which is not discharged within ninety (90) days, a Custodian is appointed for the Company or for all or substantially all
of its property, or the Company makes a general assignment for the benefit of its creditors (any of which would be a Suspension Event
as described in Sections 10(f), 10(g), and 10(h) hereof), this Agreement shall automatically terminate without any
liability or payment to the Company (except as set forth below) without further action or notice by any Person.
(b) In
the event that (i) the Company fails to file the Registration Statement with the SEC within the period specified in Section 5(a)
hereof in accordance with the terms of the Registration Rights Agreement or (ii) the Commencement shall not have occurred on or before
November 15, 2023, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect to the
Commencement, then, in the case of clause (i) above, this Agreement may be terminated by the Investor at any time prior to the filing
of the Registration Statement and, in the case of clause (ii) above, this Agreement may be terminated by either party at the close of
business on November 15, 2023 or thereafter, in each case without liability of such party to the other party (except as set forth below);
provided, however, that the right to terminate this Agreement under this Section 11(b) shall not be available to any party if such
party is then in breach of any covenant or agreement contained in this Agreement or any representation or warranty of such party contained
in this Agreement fails to be true and correct such that the conditions set forth in Section 7(c) or Section 8(e), as applicable,
could not then be satisfied.
(c)
At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason
by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement without
any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company Termination Notice
shall not be effective until one (1) Business Day after it has been received by the Investor.
(d) This
Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount as provided
herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under
this Agreement (except as set forth below).
(e) If,
for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of any
party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).
Except as set forth in Sections 11(a) (in
respect of a Suspension Event under Sections 10(f), 10(g), and 10(h)), 11(d), and 11(e), any termination of
this Agreement pursuant to this Section 11 shall be effected by written notice from the Company to the Investor, or the Investor
to the Company, as the case may be, setting forth the basis for the termination hereof. The representations and warranties and covenants
of the Company and the Investor contained in Sections 3, 4, 5, and 6 hereof, the indemnification provisions
set forth in Section 9 hereof and the agreements and covenants set forth in Sections 10, 11, and 12 shall
survive the execution and delivery of this Agreement and any termination of this Agreement. No termination of this Agreement shall (i)
affect the Company’s or the Investor’s rights or obligations under (A) this Agreement with respect to pending Regular Purchases,
Accelerated Purchases, or Additional Accelerated Purchases and the Company and the Investor shall complete their respective obligations
with respect to any pending Regular Purchases, Accelerated Purchases, and Additional Accelerated Purchases under this Agreement and (B)
the Registration Rights Agreement, which shall survive any such termination, or (ii) be deemed to release the Company or the Investor
from any liability for intentional misrepresentation or willful breach of any of the Transaction Documents.
12. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative rights
of the Company and its stockholders. All other questions concerning the construction, validity, enforcement, and interpretation of this
Agreement, the Registration Rights Agreement, and the other Transaction Documents shall be governed by the internal laws of the State
of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any
other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Illinois, County of Cook, for
the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action, or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action, or proceeding is brought in
an inconvenient forum or that the venue of such suit, action, or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action, or proceeding by mailing a copy thereof to such party
at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted
by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature
or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature complying with the U.S.
federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx, xxx.xxxxxxxx.xxxxx.xxx, etc., shall be considered due execution and shall be binding
upon the signatory thereto with the same force and effect as if the signature were an original signature.
(c) Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
(e) Entire
Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company, their
affiliates, and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other Transaction Documents,
and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein
and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant,
or undertaking with respect to such matters. The Company acknowledges and agrees that it has not relied on, in any manner whatsoever,
any representations or statements, written or oral, other than as expressly set forth in the Transaction Documents.
(f) Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile or email (provided
confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) Business
Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the
same. The addresses for such communications shall be:
If to the Company:
iBio, Inc.
00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
San Diego, California 92121
Telephone: | |
(858) 289,4887 |
E-mail: | |
xxxxx@xxxxxxx.xxx |
Attention: | |
Chief Executive Officer |
With a copy to (which shall not constitute
notice or service of process):
Blank Rome LLP
0000 Xxxxxx xx xxx Xxxxxxxx
New York, NY 10020
Telephone: | |
(000) 000-0000 |
Facsimile: | |
(000) 000-0000 |
E-mail: | |
xxxxxx.xxxxxx@xxxxxxxxx.xxx |
Attention: | |
Xxxxxx Xxxxxx, Esq. |
If to the Investor:
Lincoln Park Capital Fund, LLC
000 Xxxxx Xxxxx, Xxxxx 000
Chicago, IL 60654
Telephone: | |
000-000-0000 |
Facsimile: | |
000-000-0000 |
E-mail: | |
xxxxxxxxxxx@xxxxxxxx.xxx/xxxxx@xxxxxxxx.xxx |
Attention: | |
Xxxx Xxxxxxxxxx/Xxxxxxxx Xxxx |
With a copy to (which shall
not constitute notice or service of process):
Xxxx Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
New York, NY 10022
Telephone: | |
(000) 000-0000 |
Facsimile: | |
(000) 000-0000 |
E-mail: | |
xxxxxxxx@xxxxxxxxx.xxx |
Attention: | |
Xxxxxxx X. Xxxxxxx, Esq. |
If to the Transfer Agent:
Continental Stock
Transfer & Trust Company
0 Xxxxx Xxxxxx,
30th Floor
New York, NY 10004
Telephone: | |
(000) 000-0000 |
Facsimile: | |
(000) 000-0000 |
Attention: | |
Compliance Department |
or at such other address and/or facsimile number
and/or email address and/or to the attention of such other Person as the recipient party has specified by written notice given to each
other party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine
or email account containing the time, date, and recipient facsimile number or email address, as applicable, and an image of the first
page of such transmission, or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii),
or (iii) above, respectively.
(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor,
including by merger or consolidation. The Investor may not assign its rights or obligations under this Agreement.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced by, any
other Person.
(i) Publicity.
The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult with the Investor
and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor or its counsel on,
any press release, SEC filing, or any other public disclosure by or on behalf of the Company relating to the Investor, its purchases hereunder,
or any aspect of the Securities, the Transaction Documents, or the transactions contemplated thereby, not less than twenty-four (24) hours
prior to the issuance, filing, or public disclosure thereof. The Investor must be provided with a final version of any portion of such
press release, SEC filing, or other public disclosure relating to the Investor, its purchases hereunder, or any aspect of the Securities,
the Transaction Documents, or the transactions contemplated thereby at least twenty-four (24) hours prior to any release, issuance, filing,
or use by the Company thereof. The Company agrees and acknowledges that its failure to fully comply with this Section 12(i) shall
constitute a Material Adverse Effect.
(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to
consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
(k) No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has not engaged
any financial advisor, placement agent, broker, or finder in connection with the transactions contemplated hereby. The Investor represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker, or finder in connection with the transactions
contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement
agent, broker, or finder relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Investor
harmless against, any liability, loss, or expense (including, without limitation, reasonable attorneys’ fees and out of pocket expenses)
arising in connection with any such claim.
(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party. In addition, each and every reference to share prices and shares of
Common Stock in this Agreement shall be subject to adjustment as provided in this Agreement for reverse and forward stock splits,
stock dividends, stock combinations, and other similar transactions of the Common Stock that occur after the date of this Agreement.
References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be
deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as
amended, reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules, policies,
notices, instruments and regulations promulgated thereunder. The term “knowledge” means, as it pertains to the Company,
the actual knowledge of the executive officers and directors of the Company, together with the knowledge which they would have had
if they had conducted a reasonable inquiry of the relevant persons into the relevant subject matter. The words “hereof,”
“hereto,” “herein” and “hereunder” and words of similar import, when used in this Agreement,
shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Wherever the word
“include,” “includes” or “including” is used in this Agreement, it shall be deemed to be
followed by the words “without limitation”. The section and exhibit headings herein are for convenience only and
shall not affect the construction hereof.
(m) Remedies,
Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including, without limitation,
the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available to the
Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief), no remedy
of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein
shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply with the terms of this Agreement.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor and that the remedy
at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach,
the Investor shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity
of showing economic loss and without any bond or other security being required.
(n) Enforcement
Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced by the Investor
through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization, receivership,
or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney is retained to
represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company shall pay to the Investor,
as incurred by the Investor, all reasonable costs and expenses including reasonable attorneys’ fees incurred in connection therewith,
in addition to all other amounts due hereunder.
(o) Amendment
and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the SEC. Subject to
the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both
parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom
enforcement of such xxxxxx is sought. No failure or delay in the exercise of any power, right, or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power, right, or privilege preclude other or further exercise thereof
or of any other right, power, or privilege.
** Signature Page Follows **
IN WITNESS WHEREOF, the Investor
and the Company have caused this Agreement to be duly executed as of the date first written above.
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THE
COMPANY: |
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IBIO,
INC. |
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By: |
/s/ Xxxxxx Xxxxx |
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Name: |
Xxxxxx Xxxxx |
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Title: |
Chief
Financial Officer |
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INVESTOR: |
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LINCOLN
PARK CAPITAL FUND, LLC |
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BY:
LINCOLN PARK CAPITAL, LLC |
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BY:
ROCKLEDGE CAPITAL CORPORATION |
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By: |
/s/ Xxxxxx Xxxxxxxxxx |
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Name: |
Xxxxxx
Xxxxxxxxxx |
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Title: |
President |
EXHIBITS
Exhibit
A | |
Form
of Officer’s Certificate |
Exhibit
B | |
Form
of Secretary’s Certificate |
Exhibit
C | |
Form
of Letter to Transfer Agent |
EXHIBIT A
FORM OF OFFICER’S CERTIFICATE
This Officer’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(e) of that certain Purchase Agreement dated as of August
4, 2023 (the “Purchase Agreement”), by and between IBIO, INC., a Delaware corporation (the “Company”),
and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Purchase Agreement.
The undersigned, ___________,
______________ of the Company, hereby certifies, on behalf of the Company and not in his individual capacity, as follows:
1. I
am the _____________ of the Company and make the statements contained in this Certificate;
2. The
representations and warranties of the Company are true and correct in all material respects (except to the extent that any of such representations
and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case, such representations and
warranties are true and correct without further qualification) as of the date when made and as of the Commencement Date as though made
at that time (except for representations and warranties that speak as of a specific date, in which case such representations and warranties
are true and correct as of such date);
3. The
Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.
4. The Company has
not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company
or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency
proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
IN WITNESS WHEREOF, I have
hereunder signed my name on this ___ day of ___________.
The undersigned as Secretary
of IBIO, INC., a Delaware corporation, hereby certifies that ___________ is the duly elected, appointed, qualified and acting ________
of IBIO, INC. and that the signature appearing above is his genuine signature.
EXHIBIT B
FORM OF SECRETARY’S CERTIFICATE
This Secretary’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(k) of that certain Purchase Agreement dated as of August 4,
2023 (“Purchase Agreement”), by and between IBIO, INC., a Delaware corporation (the “Company”), and LINCOLN
PARK CAPITAL FUND, LLC (the “Investor”), pursuant to which the Company may sell to the Investor up to Ten Million Dollars
($10,000,000) of the Company's common stock, par value $0.001 per share (the “Common Stock”). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The undersigned, ____________, Secretary of the
Company, hereby certifies, on behalf of the Company and not in his individual capacity, as follows:
1. I
am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2. Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Second Amended and Restated
Bylaws (the “Bylaws”) and the Company’s Certificate of Incorporation (“Charter”), in each case, as amended
through the date hereof, and no action has been taken by the Company, its directors, officers or stockholders, in contemplation of the
filing of any further amendment relating to or affecting the Bylaws or Charter.
3. Attached
hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company
on _____________, at which a quorum was present and acting throughout. Such resolutions have not been amended, modified or rescinded and
remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors, or any
committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase Agreement,
the Registration Rights Agreement and the other Transaction Documents, or the issuance, offering and sale of the Purchase Shares and the
Commitment Shares, and (ii) and the performance of the Company of its obligations under each of the Transaction Documents as contemplated
therein.
4. As
of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN WITNESS WHEREOF,
I have xxxxxxxxx signed my name on this ___ day of ____________, 202__.
The undersigned as ______________ of IBIO,
INC., a Delaware corporation, hereby certifies that __________________ is the duly elected, appointed, qualified and acting Secretary
of IBIO, INC., and that the signature appearing above is his genuine signature.
EXHIBIT C
FORM OF LETTER TO THE TRANSFER AGENT FOR THE
ISSUANCE OF THE INITIAL
COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT
[COMPANY LETTERHEAD]
August [●], 2023
Continental Stock Transfer & Trust Company
0 Xxxxx Xxxxxx, 30th Floor
New York, NY 10004
Attention: ___________________
Re: Issuance of Common Stock to Lincoln Park Capital Fund, LLC
Dear ________,
On behalf of iBio, Inc., a Delaware corporation,
you are hereby instructed to issue as soon as possible a book-entry statement representing an aggregate of 211,473 shares
of our common stock, par value $0.001 per share, in the name of Lincoln Park Capital Fund, LLC. The book-entry statement
should be dated August [●], 2023. The book-entry statement should bear the following restrictive legend:
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO:
(1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.”
The book-entry statement should be sent as soon as possible via
overnight mail to the following address:
Lincoln Park Capital Fund, LLC
000 Xxxxx Xxxxx, Xxxxx 000
Chicago, IL 60654
Attention: Xxxx Xxxxxxxxxx/Xxxxxxxx Xxxx
Thank you very much for your help. Please call me at [●] if you
have any questions or need anything further.
IBIO,
INC. |
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By: |
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[name] |
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[title] |
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