Exhibit
10.1
Execution
Version
PURCHASE
AGREEMENT
THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of September 8, 2020, by and between CELSION CORPORATION,
a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited
liability company (the “Investor”). Capitalized terms used herein and not otherwise defined herein are defined
in Section 1 hereof.
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 Twenty-Six Million Dollars ($26,000,000) of the Company’s common stock, $0.01 par value per
share (the “Common Stock”). The shares of Common Stock to be purchased hereunder (including, without limitation,
the Initial Purchase Shares (as defined in Section 2(a) hereof)) 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:
For
purposes of this Agreement, the following terms shall have the following meanings:
(a) “Accelerated
Purchase” has the meaning as set forth in Section 2(c).
(b) “Accelerated
Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(c) hereof or any Additional
Accelerated Purchase pursuant to Section 2(d) hereof, the Business Day immediately following the applicable Purchase Date
with respect to the corresponding Regular Purchase made pursuant to Section 2(b) hereof.
(c) “Accelerated
Purchase Period” means, with respect to an Accelerated Purchase made pursuant to Section 2(c) hereof, such period
of time on the Accelerated Purchase Date beginning at the official open of trading on the Principal Market, and ending at the
earliest of (i) the official close of trading on the Principal Market on such Accelerated Purchase Date, (ii) such time that the
total number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the quotient of (A) the Accelerated
Purchase Share Amount, divided by (B) 0.3, and (iii) such time on the Accelerated Purchase Date that the Sale Price has fallen
below any minimum price threshold set forth in the applicable Purchase Notice by the Company.
(d)
“Accelerated Purchase Share Amount” means, with respect to an Accelerated Purchase made pursuant to Section
2(c) hereof or an Additional Accelerated Purchase made pursuant to Section 2(d) hereof, the number of Purchase Shares
directed by the Company to be purchased by the Investor in a Purchase Notice, which number of Purchase Shares shall not exceed
the lesser of (i) 300% of the applicable Regular Purchase Share Limit for the corresponding Regular Purchase and (ii) 30% of the
total volume of shares of Common Stock traded on the Principal Market during the Accelerated Purchase Period or the Additional
Accelerated Purchase Period, as applicable; provided, that the parties may mutually agree to increase the Accelerated Purchase
Share Amount for any Accelerated Purchase or Additional Accelerated Purchase.
(e) “Additional
Accelerated Purchase” has the meaning as set forth in Section 2(d).
(f) “Additional
Accelerated Purchase Period” means, with respect to an Additional Accelerated Purchase pursuant to Section 2(d)
hereof, such period of time on the Accelerated Purchase Date beginning at the latest of (i) the end of the Accelerated Purchase
Period for the corresponding Accelerated Purchase made pursuant to Section 2(c) hereof on such Accelerated Purchase Date,
(ii) the end of the Additional Accelerated Purchase Period for the most recently completed prior Additional Accelerated Purchase
pursuant to Section 2(d) hereof on such Accelerated Purchase Date, as applicable, and (iii) the time at which all Purchase
Shares for all prior Purchases, including, those effected on the applicable Accelerated Purchase Date have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement, and ending at the earliest of (i) the official close of trading
on the Principal Market on the Accelerated Purchase Date, (ii) such time that the total number (or volume) of shares of Common
Stock traded on the Principal Market has exceeded the quotient of (A) the Accelerated Purchase Share Amount, and (B) 0.3, and
(iii) such time that the Sale Price has fallen below any minimum price threshold set forth in the applicable Purchase Notice by
the Company.
(g) “Applicable
Laws” has the meaning as set forth in Section 4(dd).
(h) “Available
Amount” means, initially, Twenty-Six Million Dollars ($26,000,000) in the aggregate, which amount shall be reduced by
the Purchase Amount each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.
(i) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(j) “Base
Prospectus” means the Company’s final base prospectus, dated October 12, 2018, a preliminary form of which is
included in the Registration Statement, including the documents incorporated by reference therein.
(k) “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.
(l)
“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.
(m) “Commencement
Date” has the meaning as set forth in Section 2(a).
(n) “Confidential
Information” means any information disclosed by or on behalf of 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; or (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.
(o)
“DTC” means The Depository Trust Company, or any successor performing substantially the same function for the
Company.
(p) “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.
(q) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(r) “Floor
Price” means $0.25, which shall be adjusted for any reorganization, recapitalization, non-cash dividend, share split
or other similar transaction and, effective upon the consummation of any of the foregoing, the Floor Price shall mean the lower
of (i) the adjusted price and (ii) $0.25.
(s) “Initial
Prospectus Supplement” means the prospectus supplement of the Company relating to the Securities (as defined below),
including the accompanying Base Prospectus, to be prepared and filed by the Company with the SEC pursuant to Rule 424(b)(5) under
the Securities Act and in accordance with Section 5(a) hereof, together with all documents and information incorporated
therein by reference.
(t) “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 to the extent resulting 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, global pandemics
or epidemics, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any
such hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof, (D) any action taken
by the Investor, its affiliates or its or their successors and assigns with respect to the transactions contemplated by this Agreement,
(E) the effect of any change in applicable laws or accounting rules that does not have a disproportionate effect on the Company
and its Subsidiaries, taken as a whole, or (F) any change resulting from compliance with terms of this Agreement or the consummation
of the transactions contemplated by this Agreement, or (iii) the Company’s ability to perform in any material respect on
a timely basis its obligations under any Transaction Document to be performed as of the date of determination.
(u) “Maturity
Date” means the first day of the month immediately following the Thirty-Six (36) month anniversary of the Commencement
Date.
(v)
“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.
(w) “Principal
Market” means The NASDAQ Capital Market; provided, however, that in the event the Common Stock is ever listed or traded
on The NASDAQ Global Market, The NASDAQ Global Select Market, the New York Stock Exchange, NYSE American, the NYSE Arca, the OTC
Bulletin Board, or the OTCQB or the OTCQX operated by the 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 Common
Stock is then listed or traded.
(x) “Prospectus”
means the Base Prospectus, as supplemented by any Prospectus Supplement (including the Initial Prospectus Supplement), including
the documents and information incorporated by reference therein.
(y) “Prospectus
Supplement” means any prospectus supplement to the Base Prospectus (including the Initial Prospectus Supplement) filed
with the SEC pursuant to Rule 424(b) under the Securities Act in connection with the transactions contemplated by this Agreement,
including the documents and information incorporated by reference therein.
(z) “Purchase”
means the Initial Purchase, or any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase made hereunder, as
applicable.
(aa) “Purchase
Amount” means, with respect to the Initial Purchase, or 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.
(bb) “Purchase
Date” means, with respect to a Regular Purchase made pursuant to Section 2(b) hereof, the Business Day on which
the Investor receives, after 4:00 p.m., Eastern time on such Business Day, a valid Purchase Notice for such Regular Purchase in
accordance with this Agreement; provided that any Business Day that is twenty (20) days or less before the filing of any post-effective
amendment to the Registration Statement or New Registration Statement (as such term is defined in the Registration Rights Agreement),
and until the effective date of any such post-effective amendment to the Registration Statement or New Registration Statement
shall not be a Purchase Date.
(cc)
“Purchase Notice” means a notice delivered to the Investor pursuant to Section
2 with respect to any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase, respectively.
(dd) “Registration
Rights Agreement” means that certain Registration Rights Agreement, of even date herewith between the Company and the
Investor.
(ee)
“Registration Statement” has the meaning set forth in the Registration Rights Agreement.
(ff)
“Regular Purchase” has the meaning as set forth in Section 2(b).
(gg)
“Regular Purchase Share Limit” means Four Hundred Thousand (400,000) Purchase Shares, to be adjusted
following any reorganization, recapitalization, non-cash dividend, stock split, reverse stock, split or other similar
transaction effected with respect to the Common Stock; provided, that if following such an adjustment the Regular Purchase
Share Limit as adjusted would preclude the Company from delivering to the Investor a Purchase Notice hereunder for a Purchase
Amount equal to or greater than Two Hundred Fifty Thousand Dollars ($250,000), the Regular Purchase Share Limit shall equal
the maximum number of Purchase Shares which would enable the Company to deliver to the Investor a Purchase Notice for a
Purchase Amount equal to, or as closely approximating without exceeding, Two Hundred Fifty Thousand Dollars ($250,000);
provided, further, that the Investor’s committed obligation under any single Regular Purchase shall not exceed One
Million Five Hundred Thousand Dollars ($1,500,000); and provided, further, however, that the parties may mutually agree to
increase the Regular Purchase Share Limit for any Regular Purchase up to Two Million (2,000,000) Purchase Shares.
(hh) “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(ii) “SEC”
means the U.S. Securities and Exchange Commission.
(jj)
“Securities” means, collectively, the Purchase Shares and the Commitment
Shares (as defined in Section 5(e) below).
(kk)
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
(ll)
“Shelf Registration Statement” has the meaning set forth in the Registration Rights Agreement.
(mm)
“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.
(nn)
“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.
(oo)
“Transfer Agent” means American 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.
(pp)
“VWAP” means in respect of an applicable Accelerated Purchase Date, 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.
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) Initial
Purchase of Common Stock. Upon the satisfaction of the conditions set forth in Sections 7 and 8 hereof (the
“Commencement” and the date of satisfaction of such conditions the “Commencement Date”),
the Investor shall purchase One Million (1,000,000) Purchase Shares at an aggregate purchase price of One Million Dollars ($1,000,000)
(such purchase the “Initial Purchase” and such Purchase Shares, the “Initial Purchase Shares”).
(b) Commencement
of Regular Purchases of Common Stock. Upon Commencement and thereafter, the Company shall have the right, but not the obligation,
to direct the Investor, by its delivery to the Investor of a Purchase Notice from time to time on any Purchase Date on which the
Closing Sale Price is not below the Floor Price, to purchase up to the Regular Purchase Share Limit (each such purchase, a “Regular
Purchase”) at the lower of: (i) the lowest Sale Price of the Common Stock on the applicable Purchase Date 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 (the “Purchase Price”). The Investor shall
have the obligation to purchase from the Company the Purchase Shares in accordance with the terms and conditions of this Agreement.
The Company may deliver multiple Purchase Notices to the Investor for multiple Regular Purchases on a Purchase Date subject to
the second sentence of Section 2(h).
(c) Accelerated
Purchases. On any Purchase Date, provided that the Company properly submitted a Purchase Notice for a Regular Purchase for
a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect on such Purchase Date and otherwise
subject to the terms and conditions of this Agreement, the Company shall also have the right, but not the obligation, to direct
the Investor, by its delivery to the Investor of a Purchase Notice from time to time in accordance with this Agreement, to purchase
the applicable Accelerated Purchase Share Amount (each such purchase, an “Accelerated Purchase”) at ninety-seven
percent (97%) of the lower of (i) the Closing Sale Price of the Common Stock on such applicable Accelerated Purchase Date and
(ii) the VWAP for the Accelerated Purchase Period (the “Accelerated Purchase Price”). 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.
(d) Additional
Accelerated Purchases. On any Accelerated Purchase Date, provided that the Company properly submitted a Purchase Notice for
an Accelerated Purchase and subject to the terms and conditions of this Agreement, the Company shall also have the right, but
not the obligation, to direct the Investor, by its delivery to the Investor of a Purchase Notice from time to time in accordance
with this Agreement, to purchase the applicable Accelerated Purchase Share Amount (each such purchase, an “Additional
Accelerated Purchase”) at the Accelerated Purchase Price. Within one (1) Business Day after completion of each Accelerated
Purchase Date for an Additional Accelerated Purchase, the Investor will provide to the Company a written confirmation of such
Additional Accelerated Purchase setting forth the applicable Accelerated Purchase Share Amount and Accelerated Purchase Price
for such Additional Accelerated Purchase. The Company may deliver Purchase Notices to the Investor for multiple Additional Accelerated
Purchases on an Accelerated Purchase Date subject to the second sentence of Section 2(h).
(e) Payment
for Purchase Shares. For the Initial Purchase and each Regular Purchase, the Investor shall pay to the Company an amount equal
to the Purchase Amount with respect to such Initial Purchase or Regular Purchase, as applicable. 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 Purchase as full payment
for such Purchase Shares via wire transfer of immediately available funds on the second Business Day following the date that the
Investor receives the Purchase Shares for such Purchase. 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 to any Purchase within two (2) Business Days following
the receipt by the Company of the Purchase Price or Accelerated Purchase Price, as applicable, for any Purchase therefor in compliance
with this Section 2(e), or if the Company or the Transfer Agent shall fail for any reason or for no reason to electronically
transfer the Commitment Shares as DWAC Shares within two (2) Business Days following the filing of the Initial Prospectus Supplement,
and in either case, if after such second 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 Purchase Shares or Commitment Shares in anticipation of
receiving such Purchase Shares or Commitment Shares from the Company, 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 purchases. All payments made under this
Agreement shall be made in lawful money of the United States of America or wire transfer of immediately available funds to such
account as the Company 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.
(f) Compliance
with Rules of the Principal Market. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations
set forth in Section 2(g), the Company shall not issue more than 6,688,588 shares (including the Commitment Shares) of
Common Stock, to be adjusted following any reorganization, recapitalization, non-cash dividend, stock split, reverse stock, split
or other similar transaction effected with respect to the Common Stock (the “Exchange Cap”) under this Agreement,
which equals 19.99% of the Company’s outstanding shares of Common Stock as of the date hereof, unless Company stockholder
approval is obtained to issue in excess of the Exchange Cap; provided, however, that the foregoing limitation shall not apply
if at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock issued
under this Agreement is equal to or greater than $0.8313 (the “Minimum Price”), which is the lower of (i) the
Nasdaq Official Closing Price immediately preceding the execution of this Agreement or (ii) the arithmetic average of the five
(5) Nasdaq Official Closing Prices for the Common Stock immediately preceding the execution of this Agreement, as adjusted in
accordance with the rules of the Principal Market (in such circumstance, for purposes of the Principal Market, the transaction
contemplated hereby would not be “below market” and the Exchange Cap would not apply). Notwithstanding the foregoing,
the Company shall not be required or permitted to issue, and the Investor shall not be required to purchase, any shares of Common
Stock under this Agreement if such issuance would violate the rules or regulations of the Principal Market. The Company may, in
its sole discretion, determine whether to obtain stockholder approval to issue more than 19.99% of its outstanding shares of Common
Stock hereunder if such issuance would require stockholder approval under the rules or regulations of the Principal Market. The
Exchange Cap shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable that may
be aggregated with the transactions contemplated by this Agreement under applicable rules of the Principal Market.
(g) 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 or through any other means
including through the purchase of shares of Common Stock on the Principal Market 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 and its affiliates of more
than 9.99% of the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”).
Upon the written or oral request of the Investor, the Company shall promptly (but not later than one (1) Business Day after such
request) confirm orally or in writing to the Investor the amount 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.
(h) Excess
Share Limitations. If the Company delivers any Purchase Notice for a Purchase Amount in excess of the limitations contained
in this Section 2, such Purchase Notice shall be void ab initio to the extent of the amount by which the number
of Purchase Shares set forth in such 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 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 Purchase Notice. If the Company delivers a Purchase Notice, and all Purchase
Shares subject to all prior Purchases have not theretofore been received by the Investor as DWAC Shares in accordance with this
Agreement, such Purchase Notice shall not be deemed to have been delivered and the Investor shall not be required to purchase
any Purchase Shares until all Purchase Shares for such prior Purchases have been received by the Investor as DWAC Shares. If any
issuance of Purchase Shares 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 to the nearest whole share.
(i) Adjustments
for Shares and Prices. Except as specifically stated otherwise, all share-related and dollar-related limitations contained
in this Section 2, shall be adjusted to take into account any reorganization, recapitalization, non-cash dividend, stock
split, reverse stock, split or other similar transaction effected with respect to the Common Stock.
The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:
(a) Organization,
Authority. Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its 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 and thereunder.
(b) Accredited
Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D promulgated under the Securities Act.
(c) Investment
Purpose. The Investor is acquiring the Securities as principal for its own account for investment only 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.
(d) Information.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is able to bear
the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial
condition and business of the Company and other 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 as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities and is not relying on any accounting, legal, tax or other advice from the Company or its officers,
employees, representatives or advisors.
(e) No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(f) 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.
(g) Residency.
The Investor is a resident of the State of Illinois.
(h) 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.
The
Company represents and warrants to the Investor that as of the date hereof and as of the Commencement Date:
(a) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of formation
or incorporation, bylaws or other organizational or charter documents, except as would not be reasonably expected to result in
a Material Adverse Effect. Each of the Company and the 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,
would not reasonably be expected to result in a Material Adverse Effect, and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. The Company
has no Subsidiaries except as set forth in the SEC Documents (as defined below).
(b) Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and each of the other Transaction Documents, and to issue the Securities in accordance with the terms hereof
and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including without limitation, the issuance of the Commitment Shares (as defined below in Section
5(e)) and the reservation for issuance and the issuance of the Purchase Shares issuable under this Agreement, have been duly authorized
by the Company’s Board of Directors and no further consent or authorization is required by the Company, its Board of Directors
or any committee thereof, or its stockholders (except as set forth in Section 2(f) hereof), (iii) this Agreement has been,
and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company, and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the
valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies. The Board of Directors
of the Company has approved the resolutions (the “Signing Resolutions”) substantially in the form as set forth
as Exhibit B attached hereto to authorize this 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 a unanimous written consent or resolutions adopting the Signing Resolutions adopted by 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 other authorized committee thereof, and/or stockholders is necessary under applicable laws and the Company’s
Certificate of Incorporation in effect on the date hereof (the “Certificate of Incorporation”) and/or the Company’s
Bylaws in effect on the date hereof (the “Bylaws”) to authorize the execution and delivery of this Agreement
or any of the transactions contemplated hereby, 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 SEC Documents (as defined below). Except
as disclosed in the Shelf Registration Statement or the SEC Documents, (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), which have not been registered in compliance with such agreements
or arrangements or which would reasonably be expected to materially inhibit or delay the consummation by the Company of the transactions
contemplated herein, (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
Certificate of Incorporation and the Bylaws, and summaries of the 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.
(d) Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Securities
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. 15,000,000 shares of Common Stock have been duly authorized and reserved for issuance upon purchase under this Agreement
as Purchase Shares and Commitment Shares.
(e) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the reservation for issuance and issuance
of the Securities) will not (i) result in a violation of the Certificate of Incorporation 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 and the rules and regulations of the Principal Market applicable to the Company)
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 would not reasonably
be expected to result in a Material Adverse Effect. None of the Subsidiaries are 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, other organizational charter or bylaws. Neither the Company nor any of its Subsidiaries is in violation of
any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts,
defaults, terminations or amendments that would not reasonably be expected to have a Material Adverse Effect. The business of
the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance, regulation
of any governmental entity, except for possible violations, the sanctions for which either individually or in the aggregate would
not reasonably be expected to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required
under the Securities Act or applicable state securities laws and the rules and regulations 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. Since one year prior to the date
hereof, the Company has not received nor delivered any notices or correspondence from or to the Principal Market, other than routine
correspondence in connection with prior offerings of shares of Common Stock. The Principal Market has not commenced any delisting
proceedings against the Company.
(f) SEC
Documents; Financial Statements. The Company is, and has been during the 12-month period immediately preceding the date
of this Agreement, required to file reports, schedules, forms, statements and other documents with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the twelve months preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated
by reference therein, being collectively referred to herein, together with each Prospectus, as the “SEC Documents”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration
of any such extension. As of their respective dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company
included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements (i) have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP and may be subject to adjustments for quarterly financial statements, and (ii)
fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for
the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit and quarterly financial adjustments. Except as publicly available through the SEC’s
Electronic Data Gathering, Analysis, and Retrieval system (XXXXX) or in connection with a confidential treatment request submitted
to the SEC, the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof other
than SEC comment letters relating to the Company’s filings under the Exchange Act or the Securities Act. There are no “open”
SEC comments. To the Company’s knowledge, the SEC has not commenced any enforcement proceedings against the Company or any
of its Subsidiaries.
(g) Absence
of Certain Changes. Except as disclosed in the Shelf Registration Statement or the SEC Documents, since December 31, 2019,
there has been no change that would constitute a Material Adverse Effect in the business, properties, operations, financial condition
or results of operations of the Company or its Subsidiaries. The Company has not taken any steps, and does not currently expect
to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any
knowledge 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 disclosed in the Shelf Registration Statement or the SEC Documents, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company, the Common Stock
or any of the Company’s Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or
directors in their capacities as such, which would reasonably be expected to have a Material Adverse Effect.
(i) Acknowledgment
Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any
similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice
given by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Securities. The Company further represents
to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives and advisors.
(j) No
Aggregated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has sold
any security under circumstances that would reasonably be expected to cause this offering of the Securities to be aggregated 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 Shelf Registration Statement or the SEC Documents, the Company and its Subsidiaries
own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service xxxx registrations,
service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets
and rights necessary to conduct their respective businesses as now conducted. None of the Company’s material trademarks,
trade names, service marks, service xxxx registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, government authorizations, trade secrets or other intellectual property rights have expired or terminated, or, by the
terms and conditions thereof, would be reasonably expected to expire or terminate within two years from the date of this Agreement,
except as would not reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries do not have any
knowledge of any infringement by the Company or its Subsidiaries of any material trademark, trade name rights, patents, patent
rights, copyrights, inventions, licenses, service names, service marks, service xxxx registrations, trade secret or other similar
rights of others, or of any such development of similar or identical trade secrets or technical information by others, and there
is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against,
the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service xxxx registrations, trade secret or other infringement, which would reasonably be expected to have
a Material Adverse Effect.
(l)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where, in each of the three foregoing clauses, the failure to so comply would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(m) Title.
The Company does not own any real property. The Company and the Subsidiaries have good and marketable title in all personal property
owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all liens,
encumbrances and defects (“Liens”) and, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries
and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties.
Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting
and enforceable leases with which the Company and the Subsidiaries are in compliance with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
(n) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or
applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not constitute a Material Adverse Effect.
(o) Regulatory
Permits. The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as currently conducted,
except where the failure to possess such certificates, authorizations, or permits would not reasonably be expected to have a Material
Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation
or modification of any such material certificate, authorization or permit.
(p) Tax
Status. The Company and each of its Subsidiaries has made or filed all federal, state and foreign income and all other material
tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that
the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside
on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction.
(q) Transactions
With Affiliates. Except as disclosed in the SEC Documents, to the Company’s knowledge, none of the Company’s stockholders,
officers or directors or any family member or affiliate of any of the foregoing, has either directly or indirectly an interest
in, or is a party to, any transaction that would be required to be disclosed as a related party transaction pursuant to Item 404
of Regulation S-K promulgated under the Securities Act.
(r) Application
of Takeover Protections. The Company and its Board of Directors have taken or will take prior to the Commencement Date all
necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or
the laws of the state of its incorporation or otherwise which is or could become applicable to the Investor as a result of the
transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and
the Investor’s ownership of the Securities.
(s) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will
be timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has
provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material,
non-public information which is not otherwise disclosed in the Shelf Registration Statement or the SEC Documents. The Company
understands and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Investor regarding the Company, its business
and the transactions contemplated hereby, including the disclosure schedules to this Agreement, taken as a whole, is true and
correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole
did not as of their issue date contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and agrees that the Investor neither makes nor has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3
hereof.
(t) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other Person acting on behalf of
the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any Person acting on its behalf of which the Company is aware) which is in violation
of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(u) Registration
Statement. The Company has prepared and filed the Shelf Registration Statement with the SEC in accordance with the Securities
Act. The Shelf Registration Statement was declared effective by order of the SEC on August 30, 2018. The Shelf Registration Statement
is effective pursuant to the Securities Act and available for the issuance of the Securities thereunder, and the Company has not
received any written notice that the SEC has issued or intends to issue a stop order or other similar order with respect to the
Shelf Registration Statement or the Prospectus or that the SEC otherwise has (i) suspended or withdrawn the effectiveness of the
Shelf Registration Statement or (ii) issued any order preventing or suspending the use of the Prospectus or any Prospectus Supplement,
in either case, either temporarily or permanently or intends or, to the knowledge of the Company, has threatened in writing to
do so. The “Plan of Distribution” section of the Prospectus permits the issuance of the Securities under the terms
of this Agreement. At the time the Shelf Registration Statement and any amendments thereto became effective, at the date hereof
and at each deemed effective date thereof pursuant to Rule 430B(f)(2) of the Securities Act, the Shelf Registration Statement
and any amendments thereto complied and will comply in all material respects with the requirements of the Securities Act and did
not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the Base Prospectus and any Prospectus Supplement thereto, at
the time such Base Prospectus or such Prospectus Supplement thereto was issued and on the Commencement Date, complied and will
comply in all material respects with the requirements of the Securities Act and did not and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided that this representation and warranty does not apply to statements in or
omissions from any Prospectus Supplement made in reliance upon and in conformity with information relating to the Investor furnished
to the Company in writing by or on behalf of the Investor expressly for use therein. The Company meets all of the requirements
for the use of a registration statement on Form S-3 pursuant to the Securities Act in reliance on General Instruction I.B.1 of
Form S-3 for the offering and issuance of the Securities contemplated by this Agreement, and the SEC has not notified the Company
of any objection to the use of the form of the Shelf Registration Statement pursuant to Rule 401(g)(1) of the Securities Act.
The Company hereby confirms that the issuance of the Securities to the Investor pursuant to this Agreement would not result in
non-compliance with the Securities Act or any of the General Instructions to Form S-3. The Shelf Registration Statement, as of
its effective date, meets the requirements set forth in Rule 415(a)(1)(x) pursuant to the Securities Act. At the earliest time
after the filing of the Shelf Registration Statement that the Company or another participant in the transactions contemplated
hereby made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) relating to any of the Securities,
the Company was not, and as of the date hereof the Company is not, an “Ineligible Issuer” (as defined in Rule 405
of the Securities Act). The Company has not distributed any offering material in connection with the offering and issuance of
any of the Securities, and until the Investor does not hold any of the Securities, shall not distribute any offering material
in connection with the offering and sale of any of the Securities, to or by the Investor, in each case, other than the Shelf Registration
Statement or any amendment thereto, the Prospectus or any Prospectus Supplement required pursuant to applicable law or the Transaction
Documents. The Company has not made and shall not make an offer relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act without the consent of the Investor.
(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.
The Company is in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, which are applicable to it as
of the date hereof.
(x) 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(x) that may be due in connection with
the transactions contemplated by the Transaction Documents. The Company shall pay, and hold the Investor harmless against, any
liability, loss or expense (including, without limitation, attorneys’ fees and out of pocket expenses) arising in connection
with any such claim.
(y) Investment
Company. The Company is not required to be registered as, and immediately after receipt of payment for the Securities will
not be required to be registered as, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(z) 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 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.
(aa) Accountants.
The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such accountants are
an independent registered public accounting firm as required by the Securities Act.
(bb) 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.
(cc) Benefit
Plans; Labor Matters. Each benefit and compensation plan, agreement, policy and arrangement that is maintained,
administered or contributed to by the Company for current or former employees or directors of, or independent contractors
with respect to, the Company has been maintained in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, and the Company has complied in all material respects with all applicable statutes,
orders, rules and regulations in regard to such plans, agreements, policies and arrangements, such that no failure in such
maintenance would be reasonably expected to have a Material Adverse Effect. Each stock option granted under any equity
incentive plan of the Company (each, a “Stock Plan”) was granted with a per share exercise price no less
than the market price per common share on the grant date of such option in accordance with the rules of the Principal Market,
and no such grant involved any “back-dating,” “forward-dating” or similar practice with respect to
the effective date of such grant; each such option (i) was granted in compliance in all material respects with Applicable
Laws (as hereinafter defined) and with the applicable Stock Plan(s), (ii) was duly approved by the Company’s Board of
Directors or a duly authorized committee thereof, and (iii) has been properly accounted for in the Company’s financial
statements and disclosed, to the extent required, in the Company’s filings or submissions with the SEC, and the
Principal Market. No labor problem or dispute with the employees of the Company exists or is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers or
contractors, that would have a Material Adverse Effect.
(dd) Regulatory.
During the 12-month period immediately preceding the date hereof, except as described in the SEC Documents, the Company and
each of its Subsidiaries: (A) is and at all times has been in material compliance with all applicable U.S. and foreign
statutes, rules, or regulations applicable to Company and its Subsidiaries (“Applicable Laws”), except as
would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (B) have not
received any written notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the
U.S. Food and Drug Administration or any other federal, state, or foreign governmental authority having authority over the
Company (“Governmental Authority”) alleging or asserting material noncompliance with any Applicable Laws
or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required
by any such Applicable Laws (“Authorizations”); (C) possess all material Authorizations and such material
Authorizations are valid and in full force and effect and, to the Company’s knowledge, are not in violation of any term
of any such material Authorizations; (D) have not received written notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any Governmental Authority or third party alleging that any
product, operation or activity is in violation of any Applicable Laws or Authorizations and have no knowledge that any such
Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or
proceeding; (E) have not received written notice that any Governmental Authority has taken, is taking or intends to take
action to limit, suspend, modify or revoke any Authorizations and the Company has no knowledge that any such Governmental
Authority is considering such action; and (F) have not failed to file, obtain, maintain or submit any material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any
Applicable Laws or material Authorizations that would, individually or in the aggregate constitute a Material Adverse Effect,
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a
subsequent submission). During the 12-month period immediately preceding the date hereof, to the Company’s knowledge,
the studies, tests and preclinical studies and clinical trials conducted by or on behalf of the Company were and, if still
pending, are, in all material respects, being conducted in accordance with experimental protocols, procedures and controls
pursuant to accepted professional scientific standards and all Applicable Laws, including, without limitation, the United
States Federal Food, Drug, and Cosmetic Act or any other federal, state, local or foreign governmental or quasi-governmental
body exercising comparable authority; the descriptions of the results of such studies, tests and trials contained in the SEC
Documents are accurate and complete in all material respects and fairly present the data derived from such studies, tests and
trials; the descriptions in the SEC Documents of the results of such clinical trials are consistent in all material respects
with such results and to the Company’s knowledge there are no other studies or other clinical trials whose results are
materially inconsistent with or otherwise materially call into question the results described or referred to in the SEC
Documents; and the Company has not received any notices or correspondence from any Governmental Authority requiring the
termination, suspension or material modification of any studies, tests or preclinical or clinical trials conducted by or on
behalf of the Company or its Subsidiaries. The Company has concluded that it uses commercially reasonable efforts to review,
from time to time, the progress and results of the studies, tests and preclinical studies and clinical trials and, based upon
(i) the information provided to the Company by the third parties conducting such studies, tests, preclinical studies and
clinical trials that are described in the SEC Documents and the Company’s review of such information, and (ii) the
Company’s actual knowledge, the Company reasonably believes that the descriptions of the results of such studies,
tests, preclinical studies and clinical trials are accurate and complete in all material respects.
(ee) Shell
Company Status. The Company is not, and has never been, an issuer identified in Rule 144(i)(1) under the Securities
Act.
(a) Filing
of Current Report and Initial Prospectus Supplement. The Company agrees that it shall, on the date hereof, file with the SEC
a Current Report on Form 8-K in the form reviewed by the Investor prior to the date hereof relating to the transactions contemplated
by, and describing the material terms and conditions of, the Transaction Documents (the “Current Report”).
The Company further agrees that it shall, on the date hereof, file with the SEC the Initial Prospectus Supplement pursuant to
Rule 424(b) under the Securities Act in the form reviewed by the Investor prior to the date hereof specifically relating to the
transactions contemplated by, and describing the material terms and conditions of, the Transaction Documents, containing information
previously omitted at the time of effectiveness of the Shelf Registration Statement in reliance on Rule 430B under the Securities
Act, and disclosing all information relating to the transactions contemplated hereby required to be disclosed in the Shelf Registration
Statement and the Prospectus as of the date of the Initial Prospectus Supplement, including, without limitation, information required
to be disclosed in the section captioned “Plan of Distribution” in the Prospectus. The Investor acknowledges that
it will be identified in the Initial Prospectus Supplement as an underwriter within the meaning of Section 2(a)(11) of the Securities
Act. The Investor shall furnish to the Company such information regarding itself, the Securities held by it and the intended method
of distribution thereof, including any arrangement between the Investor and any other Person relating to the sale or distribution
of the Securities, as shall be reasonably requested by the Company in connection with the preparation and filing of the Current
Report and the Initial Prospectus Supplement, and shall otherwise cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of the Current Report and the Initial Prospectus Supplement with the SEC.
(b) Blue
Sky. The Company shall take all such action, if any, as is 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 reasonable best 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 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 the Principal Market 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 under the Exchange Act (including on
Form 8-K) 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, neither the Investor nor its agents, representatives and
affiliates shall in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such
term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.
(e) Issuance
of Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, the Company shall
cause to be issued to the Investor a total of 437,828 shares of Common Stock (the “Commitment Shares”) and
shall deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with respect to the issuance of such Commitment
Shares on the date of filing of the Initial Prospectus Supplement. For the avoidance of doubt, all of the Commitment Shares shall
be fully earned as of the date of this Agreement, whether or not the Commencement shall occur or any Purchase Shares are purchased
by the Investor under this Agreement and irrespective of any subsequent termination of this Agreement.
(f) Due
Diligence; Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem
appropriate, and upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal
business hours. The Company and its officers and employees shall provide information and reasonably cooperate with the Investor
in connection with any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party
hereto agrees not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential
Information for any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party
hereto acknowledges that the Confidential Information shall remain the property of the disclosing party and agrees that it shall
take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the other party. The receiving
party may disclose Confidential Information to the extent such information is required to be disclosed by law, regulation or order
of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall promptly notify the disclosing
party when such requirement to disclose arises, and shall cooperate with the disclosing party so as to enable the disclosing party
to: (i) seek an appropriate protective order; and (ii) make any applicable claim of confidentiality in respect of such Confidential
Information; and provided, further, that the receiving party shall disclose Confidential Information only to the extent required
by the protective order or other similar order, if such an order is obtained, and, if no such order is obtained, the receiving
party shall disclose only the minimum amount of such Confidential Information required to be disclosed in order to comply with
the applicable law, regulation or order. In addition, any such Confidential Information disclosed pursuant to this Section
5(f) shall continue to be deemed Confidential Information. Notwithstanding anything in this Agreement to the contrary, the
Company and the Investor agree that neither the Company nor any other Person acting on its behalf shall provide the Investor or
its agents or counsel with any information that constitutes or may reasonably be considered to 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 such 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 either publicly disclose such material, non-public information or to demonstrate to the Investor
that such information does not constitute material, non-public information. 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) No
Aggregation. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers
or sales of any security or solicit any offers to buy any security, under circumstances that would cause this offering of the
Securities by the Company to the Investor to be aggregated 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 stockholder approval is obtained before the closing of such subsequent transaction in accordance with the rules
of such Principal Market.
(j) Use
of Proceeds. The Company will use the net proceeds from the offering as described in the Prospectus.
(k) 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.
(l) Limitation
on Financings. From and after the date of this Agreement until the later of (i) the thirty-sixth (36) month anniversary of
the date of this Agreement and (ii) the thirty-sixth (36) month anniversary of the Commencement Date, in any case irrespective
of any earlier termination of this Agreement, the Company shall be prohibited from entering into any “equity line”
or similar transaction whereby an investor is irrevocably bound to purchase securities over a period of time from the Company
at a price based on the market price of the Common Stock at the time of such purchase; provided, however, that this Section
5(l) shall not be deemed to prohibit the issuance of Common Stock pursuant to (y) an “at-the-market offering”
by the Company exclusively through a registered broker-dealer acting as agent of the Company pursuant to a written agreement between
the Company and such registered broker-dealer or (z) any underwritten offering that is not an “equity line” or similar
transaction whereby an investor is irrevocably bound to purchase securities over a period of time from the Company at a price
based on the market price of the Common Stock at the time of such purchase. The Investor shall be entitled to seek injunctive
relief against the Company 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.
(m) 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 that relates to
the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby, not
less than twenty-four (24) hours prior to the issuance, filing or public disclosure thereof, unless sooner required by Applicable
Laws; provided that the Company shall not be required to provide to the Investor any disclosures that are materially similar to
those previously reviewed by the Investor. The Investor must be provided with a substantially final version of any such press
release, SEC filing or other public disclosure at least twenty-four (24) hours prior to any release, filing or use by the Company
thereof, unless sooner required by Applicable Laws. The Company agrees and acknowledges that its failure to fully comply with
this provision constitutes a Material Adverse Effect.
On
the date of filing of the Initial Prospectus Supplement, the Company shall issue to the Transfer Agent (and any subsequent transfer
agent) irrevocable instructions, in the form substantially similar to those used by the Investor in substantially similar transactions,
to issue the Purchase Shares and the Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Transfer Agent Instructions”). All Securities to be issued to or for the benefit of the Investor pursuant to this Agreement
shall be issued as DWAC Shares. The Company warrants to the Investor that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 6 will be given by the Company to the Transfer Agent with respect to the Securities,
and the Securities shall otherwise be freely transferable on the books and records of the Company; provided that if for any reason
the Initial Prospectus Supplement has not been filed before March 8, 2021, the Company shall issue instructions to the Transfer
Agent to issue the Commitment Shares to the Investor.
The
right of the Company hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction
or, where legally permissible, the waiver 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) No
stop order with respect to the Registration Statement shall be pending or threatened by the SEC;
(c) The
Common Stock shall be listed on the Principal Market, and all Securities to be issued by the Company to the Investor under the
Transaction Documents shall have been approved for listing on the Principal Market in accordance with the applicable rules and
regulations of the Principal Market, subject only to official notice of issuance; and
(d) The
representations and warranties of the Investor 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 3 above, in which case, such representations
and warranties 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.
The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction or, where legally permissible,
the waiver 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
Investor shall have received the opinions and the negative assurances letter of the Company’s legal counsel dated as of
the Commencement Date substantially in the form agreed to prior to the date of this Agreement by the Company’s legal counsel
and the Investor’s legal counsel;
(c) 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, such representations
and warranties shall be 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, 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 of the Company, dated as of the
Commencement Date, to the foregoing effect in the form attached hereto as Exhibit A;
(d) The
Board of Directors of the Company shall have adopted resolutions substantially in the form attached hereto as Exhibit B
which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date;
(e) As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock solely for the purpose
of effecting purchases of Purchase Shares hereunder, 15,000,000 shares of Common Stock;
(f) The
Irrevocable Transfer Agent Instructions shall have been delivered to and acknowledged in writing by the Company and the Company’s
Transfer Agent (or any successor transfer agent), and the Commitment Shares required to be issued on the date of this Agreement
in accordance with Section 5(e) hereof shall have been issued directly to the Investor electronically as DWAC Shares;
(g) The
Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation and a certificate evidencing
the incorporation and good standing of the Company in the State of Delaware, each issued by the Secretary of State of the State
of Delaware, as well as a certificate evidencing the authorization to do business in New Jersey and in each state where the Company
is required to be authorized to do business, as of a date within ten (10) Business Days of the Commencement Date;
(h) The
Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as
of the Commencement Date, in the form attached hereto as Exhibit C;
(i) The
Registration Statement shall continue to be effective and no stop order with respect to the Registration Statement shall be pending
or threatened by the SEC. The Company shall have a maximum dollar amount of Common Stock registered under the Registration Statement
which is sufficient to issue to the Investor not less than (i) the full Available Amount worth of Purchase Shares plus (ii) all
of the Commitment Shares. The Current Report and the Initial Prospectus Supplement each shall have been filed with the SEC, as
required pursuant to Section 5(a), and in compliance with the Registration Rights Agreement. The Prospectus shall be current
and available for issuances and sales of all of the Securities by the Company to the Investor and for the resale of all of the
Securities by the Investor. Any other Prospectus Supplements required to have been filed by the Company with the SEC under the
Securities Act at or prior to the Commencement Date shall have been filed with the SEC within the applicable time periods prescribed
for such filings under the Securities Act. 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;
(j) No
Event of Default (as defined below) has occurred, and no event which, after notice and/or lapse of time, would reasonably be expected
to become an Event of Default has occurred;
(k) 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; and
(l) No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state, local or foreign 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.
(m) 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.
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, officers, directors, members, managers, 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 or compromise
of any claim if such settlement or compromise 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 Laws. Payment under this indemnification shall be made within thirty (30) days from the
date the Indemnitee makes written request for it. A certificate containing reasonable detail as to the amount of such indemnification
submitted to the Company by the Indemnitee shall be conclusive evidence, absent manifest error, of the amount due from the Company
to the Indemnitee, provided that the Indemnitee shall undertake to repay any amounts paid to it hereunder if it is ultimately
determined, by a final and non-appealable order of a court of competent jurisdiction, that the Indemnitee is not entitled to be
indemnified against such Indemnified Liabilities by the Company pursuant to this Agreement. 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.
An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:
(a) the
effectiveness of the Registration Statement registering the Securities lapses for any reason (including, without limitation, the
issuance of a stop order or similar order), the Registration Statement or any Prospectus is unavailable for the sale by the Company
to the Investor (or the resale by the Investor) of any or all of the Securities to be issued to the Investor under the Transaction
Documents (including, without limitation, as a result of any failure of the Company to satisfy all of the requirements for the
use of a registration statement on Form S-3 pursuant to the Securities Act for the offering and sale of the Securities contemplated
by this Agreement), ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business Days in any 365-day
period, but excluding a lapse or unavailability where (i) the Company terminates the Registration Statement after the Investor
has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes the Shelf
Registration Statement with a New Registration Statement (as defined in the Registration Rights Agreement), including (without
limitation) when the Registration Statement 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 sold to the Investor are included in the superseding (or new) registration statement);
(b) the
suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company
may not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c) the
delisting of the Common Stock from The NASDAQ Capital Market; provided, however, that the Common Stock is not immediately thereafter
trading on The NASDAQ Global Market, The NASDAQ Global Select Market, the New York Stock Exchange, the NYSE Arca, the NYSE American,
the OTC Bulletin Board, or the OTCQB or the OTCQX operated by the OTC Markets Group, Inc. (or any nationally recognized successor
to any of the foregoing);
(d) the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within one (1) Business Day after the applicable
Purchase Date or 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
could 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 and is not cured;
(f) if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g) if
the Company is at any time insolvent, or, 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 receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law (a “Custodian”) of it or for all
or substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable
to pay its debts as the same become due;
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company or any Subsidiary;
(i) if
at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or
(j) if
at any time after the Commencement Date, the Exchange Cap is reached (to the extent the Exchange Cap is applicable pursuant to
Section 2(f) hereof).
In
addition to any other rights and remedies under Applicable Laws and this Agreement, so long as an Event of Default has occurred
and is continuing, or if any event that, after notice and/or lapse of time, would reasonably be expected to become an Event of
Default, has occurred and is continuing, the Company shall not deliver to the Investor any Purchase Notice, and the Investor shall
not purchase any shares of Common Stock under this Agreement.
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, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company
makes a general assignment for the benefit of its creditors (any of which would be an Event of Default as described in Sections
10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without any liability or payment
to the Company (except as set forth below) without further action or notice by any Person.
(b) In
the event that the Commencement shall not have occurred on or before October 8, 2020, due to the failure to satisfy the conditions
set forth in Sections 7 and 8 above with respect to the Commencement, either the Company or the Investor shall have
the option to terminate this Agreement at the close of business on such date or thereafter without liability of any party to any
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(d) or Section 8(c), as applicable, could not then be satisfied.
(c) At
any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason
by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement
without any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company
Termination Notice shall not be effective until one (1) Business Day after it has been received by the Investor.
(d) This
Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount
as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to
any other party under this Agreement (except as set forth below).
(e) If,
for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this
Agreement by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice
on the part of any party and without any liability whatsoever of any party to any other party under this Agreement (except as
set forth below).
Except
as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f), 10(g) and
10(h)), 11(d) and 11(e), any termination of this Agreement pursuant to this Section 11 shall be effected
by written notice from the Company to the Investor, or the Investor to the Company, as the case may be, setting forth the basis
for the termination hereof. The representations and warranties of the Company and the Investor contained in Sections 3
and 4 hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set
forth in Sections 5, 6, 10, 11 and 12 shall survive the Commencement 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 any pending Initial Purchase Regular Purchases, Accelerated Purchases, and Additional Accelerated
Purchases and the Company and the Investor shall complete their respective obligations with respect to any pending Initial Purchase,
Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases under this Agreement and (B) the Registration Rights
Agreement, which shall survive any such termination in accordance with its terms, 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.
(a) Governing
Law; Jurisdiction; Jury Trial. The DGCL 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 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 Xxxx, 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 shall be considered due execution
and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.
(c) Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
(e) Entire
Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company,
their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other
Transaction Documents and the instruments referenced herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges and agrees
that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly
set forth in the Transaction Documents.
(f) Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed
to the party to receive the same. The addresses for such communications shall be:
If
to the Company:
|
Celsion Corporation |
|
000 Xxxxx Xxxxx, Xxxxx 000 |
|
Xxxxxxxxxxxxx, XX 00000 |
|
Telephone: |
000.000.0000 |
|
E-mail: xxxxxxxxx@xxxxxxx.xxx |
Attention:
Xxxxxxx X. Xxxxxxxx, Chairman, President & CEO
With
a copy to (which shall not constitute notice or service of process):
|
Xxxxx & XxXxxxxx LLP |
|
000 Xxxxx Xxxxxx |
|
Xxx Xxxx, XX 00000 |
|
Telephone: |
(000)
000-0000 |
|
Facsimile:
|
(000)
000-0000 |
|
Email:
|
Xxxxxx.Xxxxxx@xxxxxxxxxxxxx.xxx |
|
Attention: |
Xxxxxx
Xxxxxx, Esq. |
If
to the Investor:
|
Lincoln Park Capital Fund, LLC |
|
000 Xxxxx Xxxxx, Xxxxx 000 |
|
Xxxxxxx, XX 00000 |
|
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):
|
K&L Gates, LLP |
|
000 X. Xxxxxxxx Xxxx., Xxx. 0000 |
|
Xxxxx, Xxxxxxx 00000 |
|
Telephone: |
(000)
000-0000 |
|
Facsimile:
|
(000)
000-0000 |
|
E-mail: |
xxxxxxx.xxxxxx@xxxxxxx.xxx |
|
Attention: |
Xxxxxxx
X. Xxxxxx, Esq. |
If
to the Transfer Agent:
|
American Stock Transfer & Trust Company |
|
0000 00xx Xxxxxx |
|
Xxxxxxxx, XX 00000 |
|
Telephone:
|
(000)
000-0000 Ext. 6494 |
|
Facsimile:
|
(000)
000-0000 |
|
Email: |
Xxxxx0@xxxxxxxxxxxx.xxx
|
|
Attention:
|
Xxxxxxx
Xxxxxx |
or
at such other address, email and/or facsimile number 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, email 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) 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.
(j) No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.
(k) 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.
(l) 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 attorneys’ fees incurred
in connection therewith, in addition to all other amounts due hereunder.
(m) Waiver;
Failure or Indulgence Not Waiver. No provision of this Agreement may be waived other than in a written instrument signed by
the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege.
**
Signature Page Follows **
IN
WITNESS WHEREOF, the Investor and the Company have caused this Purchase Agreement to be duly executed as of the date first
written above.
|
THE
COMPANY: |
|
|
|
CELSION
CORPORATION |
|
|
|
By: |
/s/
Xxxxxxx X. Xxxxxx |
|
Name: |
Xxxxxxx
X. Xxxxxx |
|
Title: |
Chief
Financial Officer and Executive Vice President |
|
|
|
INVESTOR: |
|
|
|
LINCOLN
PARK CAPITAL FUND, LLC |
|
|
|
BY: |
LINCOLN
PARK CAPITAL, LLC |
|
BY: |
Rockledge
Capital Corporation
|
|
|
|
|
By: |
/s/
Xxxx Xxxxxxxxxx
|
|
Name: |
Xxxx
Xxxxxxxxxx
|
|
Title:
|
President |
EXHIBITS
Exhibit
A |
Form
of Officer’s Certificate |
Exhibit
B |
Form
of Resolutions of the Board of Directors of the Company |
Exhibit
C |
Form
of Secretary’s Certificate |
EXHIBIT
A
FORM
OF OFFICER’S CERTIFICATE
This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(c) of that certain Purchase
Agreement dated as of September 8, 2020, (“Purchase Agreement”), by and between CELSION CORPORATION,
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);
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 currently have any knowledge or reason to believe that its creditors intend
to initiate involuntary bankruptcy or insolvency proceedings. The Company is currently financially solvent and is generally able
to pay its debts as they become due.
IN
WITNESS WHEREOF, I have hereunder signed my name as of the date first written above.
The
undersigned as Secretary of CELSION CORPORATION, a Delaware corporation, hereby certifies that [ ]
is the duly elected, appointed, qualified and acting [ ]
of CELSION CORPORATION, and that the signature appearing above is his genuine signature.
EXHIBIT
B
FORM
OF COMPANY RESOLUTIONS
FOR
SIGNING PURCHASE AGREEMENT
WHEREAS,
there has been presented to the Board of Directors of the Corporation a draft of the Purchase Agreement (the “Purchase
Agreement”) by and between CELSION CORPORATION, a Delaware corporation (the “Corporation”),
and Lincoln Park Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln Park of up to Twenty-Six
Million Dollars ($26,000,000) of the Corporation’s common stock, $0.01 par value per share (the “Common Stock”),
and a draft of the Registration Rights Agreement (the “Registration Rights Agreement”) by and between the Company
and Lincoln Park providing for the registration of the shares of the Company’s Common Stock issuable in respect of the Purchase
Agreement on behalf of the Company; and
WHEREAS,
after careful consideration of the terms and conditions of the Purchase Agreement, the documents incident thereto and other factors
deemed relevant by the Board of Directors, the Board of Directors has determined that it is advisable and in the best interests
of the Corporation to engage in the transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance
of up to 437,828 shares of Common Stock (the “Commitment Shares”) to Lincoln Park as a commitment fee, and
the sale of shares of Common Stock to Lincoln Park up to the available amount under the Purchase Agreement (the “Purchase
Shares”) and to register such shares as contemplated by the Registration Rights Agreement.
Transaction
Documents
NOW,
THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and [ ]
and [ ] (the “Authorized Officers”)
are severally authorized to execute and deliver the Purchase Agreement, and any other agreements or documents contemplated thereby,
with such amendments, changes, additions and deletions as the Authorized Officers may deem to be appropriate and approve on behalf
of, the Corporation, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and
FURTHER
RESOLVED, that the terms and provisions of the Registration Rights Agreement by and among the Company and Lincoln Park are hereby
approved and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the
terms of the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate
and approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and
FURTHER
RESOLVED, that the terms and provisions of the forms of Irrevocable Transfer Agent Instructions (the “Instructions”)
are hereby approved and the Authorized Officers are authorized to execute and deliver the Instructions on behalf of the Company
in accordance with the Purchase Agreement, with such amendments, changes, additions and deletions as the Authorized Officers may
deem appropriate and approve, on behalf of the Corporation, such approval to be conclusively evidenced by the signature of an
Authorized Officer thereon; and
Execution
of Purchase Agreement
FURTHER
RESOLVED, that the Authorized Officers be and each of them hereby is authorized to execute and deliver the Purchase Agreement
in substantially the form presented to the Board of Directors and providing for the issuance and sale of up to Twenty-Six Million
Dollars ($26,000,000) of the Common Stock to Lincoln Park; and
Issuance
of Common Stock
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue to Lincoln Park [ ]
shares of Common Stock as Commitment Shares upon execution and delivery of the Purchase Agreement by the Company and Lincoln Park,
and that upon issuance of the Commitment Shares pursuant to the Purchase Agreement the Commitment Shares shall be duly authorized,
validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof; and
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to
the Available Amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance
of the Purchase Shares and receipt of the consideration therefor pursuant to the Purchase Agreement, the Purchase Shares will
be duly authorized, validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof;
and
FURTHER
RESOLVED, that the Corporation shall initially reserve 15,000,000 shares of Common Stock for issuance as Purchase Shares under
the Purchase Agreement; and
Approval
of Actions
FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed
to proceed on behalf of the Corporation and to take all such steps as deemed necessary or appropriate, with the advice and assistance
of counsel, to cause the Corporation to consummate the transactions contemplated by the Purchase Agreement and the agreements
referred to therein and to perform its obligations under such agreements; and
FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in
the name of the Corporation, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed
and delivered all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters
and undertakings and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable
to carry into effect the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken
by any officer or director of the Corporation in connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects.
EXHIBIT
C
FORM
OF SECRETARY’S CERTIFICATE
This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(h) of that certain Purchase
Agreement dated as of September 8, 2020, (“Purchase Agreement”), by and between CELSION CORPORATION,
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 Twenty-Six Million Dollars ($26,000,000) of the Company’s Common
Stock, $0.01 par value (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 her individual capacity, as follows:
1.
I am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2.
Attached hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Bylaws (“Bylaws”)
and Certificate of Incorporation (“Charter”), in each case, as amended through the date hereof, and no action
has been taken by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment
relating to or affecting the Bylaws or Charter.
3.
Attached hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors
of the Company on September [ ], 2020. 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, or the issuance, offering and sale of the Purchase Shares and the Commitment Shares and (ii) and the performance
of the Company of its obligation under the Transaction Documents as contemplated therein.
4.
As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN
WITNESS WHEREOF, I have hereunder signed my name as of the date first written above.
The
undersigned as [ ] of CELSION CORPORATION,
a Delaware corporation, hereby certifies that [ ]
is the duly elected, appointed, qualified and acting Secretary of CELSION CORPORATION, and that the signature appearing
above is her genuine signature.