As filed with the Securities and Exchange
Commission on December 21, 2023
Registration Statement No. 333-275697
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Bluejay
Diagnostics, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
3841 |
|
47-3552922 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
360
Massachusetts Avenue, Suite 203
Acton,
MA 01720
(844)
327-7078
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Neil
Dey
Bluejay
Diagnostics, Inc.
360
Massachusetts Avenue, Suite 203
Acton,
MA 01720
(844)
327-7078
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Joseph E. Gilligan |
Rick A. Werner, Esq. |
Brian C. O’Fahey |
Jayun Koo, Esq. |
Hogan Lovells US LLP |
Haynes and Boone, LLP |
Columbia Square |
30 Rockefeller Plaza, 26th Floor |
555 Thirteenth Street, NW |
New York, New York 10112 |
Washington, DC 20004 |
(212) 659-7300 |
(202) 637-5600 |
|
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement is declared effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☒ |
Smaller reporting company ☒ |
Emerging
growth company ☒ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does
it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion,
dated December 21, 2023
Preliminary
Prospectus
BLUEJAY
DIAGNOSTICS, INC.
Up to 2,026,958 Shares
of Common Stock
Prefunded Warrants to purchase up to 2,026,958
Shares of Common Stock
Common Warrants to purchase up to 2,026,958
Shares of Common Stock
2,026,958 Shares of Common Stock underlying
Prefunded Warrants and Common Warrants
Placement Agent Warrants to Purchase up
to 141,887 Shares of Common Stock
141,887 Shares of Common Stock Underlying the Placement Agent
Warrants
We are offering up to 2,026,958 shares of
common stock, together with warrants to purchase up to 2,026,958 shares of common stock, each a Common Warrant, at an assumed combined
public offering price of $2.9601 per share and Common Warrant, which is equal to the closing price per share of our common stock on The
Nasdaq Capital Market, or Nasdaq, on December 20, 2023 (and the shares issuable from time to time upon exercise of the Common Warrants),
pursuant to this prospectus. The shares of common stock and Common Warrants will be separately issued but must be purchased together
in this offering. Each share of common stock is being offered together with a Common Warrant to purchase share of common stock. Each
Common Warrant will have an exercise price of $ per share, (representing %
of the price at which a share of common stock and accompanying Common Warrant are sold to the public in this offering), will be exercisable
upon issuance and will expire years from the date of issuance.
We are also offering prefunded warrants, or
Prefunded Warrants, to purchase up to an aggregate of 2,026,958 shares of common stock to those purchasers whose purchase of shares of
common stock in this offering would result in the purchaser, together with its affiliates and certain related parties, beneficially owning
more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock following the consummation of this offering
in lieu of the shares of our common stock that would result in ownership in excess of 4.99% (or, at the election of the purchaser, 9.99%).
Each Prefunded Warrant will be exercisable for one share of common stock at an exercise price of $0.0001 per share. Each Prefunded Warrant
is being offered together with the same Common Warrant described above being offered with each share of common stock. The assumed combined
public offering price for each such Prefunded Warrant, together with the Common Warrant, is $2.96 which is equal to the closing price
of our common stock on Nasdaq on December 20, 2023, less the $0.0001 per share exercise price of each such Prefunded Warrant. Each Prefunded
Warrant will be exercisable upon issuance and will expire when exercised in full. The Prefunded Warrants and Common Warrants are immediately
separable and will be issued separately in this offering, but must be purchased together in this offering. For each Prefunded Warrant
we sell, the number of shares of common stock we are offering will be decreased on a one-for-one basis. This prospectus also relates
to the shares of common stock issuable upon the exercise of the Prefunded Warrants and the Common Warrants, and placement agent
warrants to purchase up to 141,887 shares of common stock and 141,887 shares of common stock issuable upon exercise of the placement
agent warrants.
This offering will terminate on ,
2023 unless we decide to terminate the offering (which we may do at any time in our discretion) prior to that date. We will have one
closing for all the securities purchased in this offering. The combined public offering price per share (or Prefunded Warrant) and Common
Warrant will be fixed for the duration of this offering.
We have engaged H.C. Wainwright & Co.,
LLC, or the placement agent, to act as our exclusive placement agent in connection with this offering. The placement agent has agreed
to use its reasonable best efforts to arrange for the sale of the securities offered by this prospectus. The placement agent is not purchasing
or selling any of the securities we are offering and the placement agent is not required to arrange the purchase or sale of any specific
number or dollar amount of securities. We have agreed to pay to the placement agent the placement agent fees set forth in the table below,
which assumes that we sell all of the securities offered by this prospectus. Since we will deliver the securities to be issued in this
offering upon our receipt of investor funds, there is no arrangement for funds to be received in escrow, trust or similar arrangement.
There is no minimum offering requirement as a condition of closing of this offering. Because there is no minimum offering amount required
as a condition to closing this offering, we may sell fewer than all of the securities offered hereby, which may significantly reduce
the amount of proceeds received by us, and investors in this offering will not receive a refund in the event that we do not sell an amount
of securities sufficient to pursue our business goals described in this prospectus. In addition, because there is no escrow account and
no minimum offering amount, investors could be in a position where they have invested in our company, but we are unable to fulfill all
of our contemplated objectives due to a lack of interest in this offering. Further, any proceeds from the sale of securities offered
by us will be available for our immediate use, despite uncertainty about whether we would be able to use such funds to effectively implement
our business plan. See the section entitled “Risk Factors” for more information. We will bear all costs associated with the
offering. See “Plan of Distribution” on page 24 of this prospectus for more information regarding these arrangements.
Our common stock is listed on Nasdaq under
the symbol “BJDX.” The closing price of our common stock on Nasdaq on December 20, 2023 was $2.9601 per share.
All share, Common Warrant, and Prefunded Warrant
numbers are based on an assumed combined public offering price of $2.9601 per share and the accompanying Common Warrant and $2.96 per
Prefunded Warrant and the accompanying Common Warrant. The actual combined public offering price per share and Common Warrant and the
actual combined public offering price per Prefunded Warrant and Common Warrant will be determined through negotiation among us, the placement
agent and the investors in the offering based on market conditions at the time of pricing, and may be at a discount to the current market
price of our common stock. Therefore, the recent market price per share of common stock used throughout this prospectus as an assumed
combined public offering price may not be indicative of the final offering price. There is no established trading market for the Prefunded
Warrants or the Common Warrants, and we do not expect a market to develop. We do not intend to apply for a listing of the Prefunded Warrants
or the Common Warrants on any securities exchange or other nationally recognized trading system. Without an active trading market, the
liquidity of the Prefunded Warrants and the Common Warrants will be limited.
We
are an “emerging growth company” as that term is used in the Jumpstart Our Business Startups Act of 2012 and as such, are
subject to reduced public company disclosure standards for this prospectus supplement, the accompanying prospectus and our filings with
the Securities and Exchange Commission. See “Prospectus Summary—Implications of Being an Emerging Growth Company.”
You
should read this prospectus, together with additional information described under the headings “Information Incorporated by Reference”
and “Where You Can Find Additional Information,” carefully before you invest in any of our securities.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 8 of this prospectus for a
discussion of risks that should be considered in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or the accuracy of this prospectus. Any representation to the contrary is a criminal offense.
| |
Per Share and Accompanying Common Warrant | | |
Per Prefunded Warrant and Accompanying Common
Warrant | | |
Total | |
Public offering price | |
$ | | | |
$ | | | |
$ | | |
Placement agent’s fees(1) | |
$ | | | |
$ | | | |
$ | | |
Proceeds to us, before expenses(2) | |
$ | | | |
$ | | | |
$ | | |
(1) |
In
addition, we have also agreed to pay the placement agent a management fee of 1.0% of the aggregate gross proceeds raised in this
offering and to pay the placement agent for certain of its offering-related expenses. In addition, we have agreed to issue the placement
agent or its designees, as compensation in connection with this offering, warrants, or the placement agent warrants, to purchase
a number of shares of common stock equal to 7.0% of the shares of common stock sold in this offering (including the shares of common
stock issuable upon the exercise of the Prefunded Warrants), at an exercise price of $ per
share, which represents 125% of the combined public offering price per share of common stock and accompanying Common Warrant. See
“Plan of Distribution” for a description of the compensation to be received by the placement agent. |
| (2) | Because
there is no minimum number of securities or amount of proceeds required as a condition to closing in this offering, the actual public
offering amount, placement agent fees, and proceeds to us, if any, are not presently determinable and may be substantially less than
the total maximum offering amounts set forth above. For more information, see “Plan of Distribution.” |
Delivery of the securities offered hereby
is expected to be made on or about , 2023, subject to satisfaction of customary closing conditions.
H.C. Wainwright
& Co.
The date of this prospectus is ,
2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
The registration statement of which this prospectus
forms a part that we filed with the Securities and Exchange Commission (the “SEC”) includes exhibits that provide more detail
of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC, together with
the additional information described under the headings “Where You Can Find Additional Information” and “Information
Incorporated by Reference” before making your investment decision. You should rely only on the information provided in or incorporated
by reference in this prospectus, in any prospectus supplement or in a related free writing prospectus, or documents to which we otherwise
refer you. In addition, this prospectus contains summaries of certain provisions contained in some of the documents described herein,
but reference is made to the actual documents for complete information.
This prospectus includes important information
about us, the securities being offered and other information you should know before investing in our securities. You should not assume
that the information contained in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this
prospectus, even though this prospectus is delivered or securities are sold or otherwise disposed of on a later date. It is important
for you to read and consider all information contained in this prospectus in making your investment decision. All of the summaries in
this prospectus are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been
filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part,
and you may obtain copies of those documents as described below under the heading “Where You Can Find Additional Information.”
We have not, and the placement agent has not,
authorized anyone to provide any information or to make any representations other than those contained or incorporated by reference in
this prospectus or in any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. The information contained
in this prospectus or incorporated by reference in this prospectus or contained in any applicable free writing prospectus is current only
as of its date, regardless of its time of delivery or any sale of our securities. Our business, financial condition, results of operations
and prospects may have changed since that date.
For investors outside the United States: We have
not, and the placement agent has not, done anything that would permit this offering or possession or distribution of this prospectus in
any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come
into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities
and the distribution of this prospectus outside the United States.
Unless otherwise indicated, information contained
in this prospectus or incorporated by reference in this prospectus concerning our industry, including our general expectations and market
opportunity, is based on information from our own management estimates and research, as well as from industry and general publications
and research, surveys and studies conducted by third parties. Management estimates are derived from publicly available information, our
knowledge of our industry and assumptions based on such information and knowledge, which we believe to be reasonable. In addition, assumptions
and estimates of our and our industry’s future performance are necessarily uncertain due to a variety of factors, including those
described in “Risk Factors” beginning on page 8 of this prospectus. These and other factors could cause our future
performance to differ materially from our assumptions and estimates.
This prospectus is an offer to sell only the
securities offered hereby, and only under circumstances and in jurisdictions where it is lawful to do so. We are not, and the placement
agent is not, making an offer to sell these securities in any state or jurisdiction where the offer or sale is not permitted.
Industry and Market Data
This prospectus and the documents incorporated
by reference contain estimates, projections and other information concerning our industry, our business, the science of our products and
the markets for our products, including data regarding the incidence of certain medical conditions and the scientific basis of our products.
We obtained the industry, science, market and similar data set forth in this prospectus from our internal estimates and research and from
academic and industry research, publications, surveys, and studies conducted by third parties. While we believe that these industry publications
and third-party research, surveys and studies are reliable, we have not independently verified such data and we do not make any representation
as to the accuracy of the information. The content of the above sources, except to the extent specifically set forth in this prospectus,
does not constitute a portion of this prospectus and is not incorporated herein. Information that is based on estimates, forecasts, projections,
market research, scientific research, or similar methodologies is inherently subject to uncertainties and actual events or circumstances
may differ materially from events and circumstances that are assumed in this information.
Note Regarding Trademarks
Unless the context otherwise requires, references in this prospectus
to “Bluejay,” “the Company,” “we,” “us” and “our” refer to Bluejay Diagnostics,
Inc. Our logo and all product names are our common law trademarks. Solely for convenience, trademarks and tradenames referred to in this
prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate in any way that we will not
assert, to the fullest extent under applicable law, our rights, or that the applicable owner will not assert its rights, to these trademarks
and tradenames. We do not intend the use or display of other companies’ trademarks and trade names to imply a relationship with,
or endorsement or sponsorship of us by, any other companies, products or services.
Basis of Presentation
On July 21, 2023, we filed a Certificate of Amendment
to our restated certificate of incorporation with the Secretary of State of the State of Delaware to effect a 1-for-20 reverse stock split
of our issued and outstanding shares of common stock, par value $0.0001 per share (the “Reverse Stock Split”), which
became effective on July 24, 2023. All historical share and per share amounts reflected throughout this prospectus have been adjusted
to reflect the Reverse Stock Split. However, our periodic and current reports, and all other documents incorporated by reference into
this prospectus that were filed prior to July 24, 2023, do not give effect to the Reverse Stock Split.
PROSPECTUS SUMMARY
This summary highlights information contained
in greater detail elsewhere in this prospectus or incorporated by reference into this prospectus from our filings with the SEC. This summary
is not complete and does not contain all of the information you should consider in making your investment decision. You should read the
entire prospectus and the information incorporated by reference herein carefully before making an investment in our securities. You should
carefully consider, among other things, our financial statements and the related notes and the sections entitled “Risk Factors”
and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in, or
incorporated by reference into, this prospectus. When we use the terms “Bluejay,” “the Company,” “us,”
“we” and “our,” we refer to Bluejay Diagnostics, Inc., and its wholly owned subsidiary Bluejay SpinCo, LLC, taken
as a whole.
Overview
We are a medical diagnostics company developing rapid tests using whole
blood, plasma, and serum on our Symphony technology platform, (“Symphony”), to improve patient outcomes in critical care settings.
Our Symphony platform is a combination of our intellectual property (“IP”), and exclusively licensed and patented IP that
consists of a mobile analyzer and single-use test cartridges that if cleared, authorized, or approved by the U.S. Food and Drug Administration(the
“FDA”), can provide a solution to a significant market need in the United States. Clinical trials indicate the Symphony analyzer
produces laboratory-quality results in less than 20 minutes, important in intensive care units (ICUs) and emergency rooms (ERs) where
rapid and reliable results are required.
Our first product, the Symphony IL-6 test, is
for the monitoring of disease progression in critical care settings. A current challenge for healthcare professionals is the excessive
time and cost associated with triage and risk stratifying patients. IL-6 is a clinically established biomarker, and is considered a ‘first-responder’
biomarker in the inflammatory cascade which can be used for the assessment of patient prognosis for many diseases and conditions, including
sepsis. The Symphony IL-6 test has the ability to consistently monitor this important and clinically informative biomarker with rapid
results.
In the future we plan to develop additional tests
for the Symphony platform, including two cardiac biomarkers (hsTNT and NT pro-BNP) among others. We do not yet have regulatory clearance
for our Symphony products, and our Symphony products will need to receive regulatory authorization from the FDA in order to be marketed
as a diagnostic product in the United States.
Our operations to date have been funded primarily
through the proceeds of (i) our initial public offering in November 2021, and (ii) the registered direct offering of common stock and
concurrent private placement of warrants that we completed on August 28, 2023, which is described further below.
Our Market
The Symphony platform and our initial biomarker
test, Symphony IL-6 test, is well suited to address a subset of the global in vitro diagnostics devices (“IVDs”), market,
including sepsis, cardio-metabolic diseases, cancer and other diseases that require rapid tests. Symphony targets critical care markets
where physicians must quickly determine patient acuity to identify optimal treatment regimens.
Our Business Model
Our goal is to become the first provider of rapid
tests for infectious, inflammatory, and metabolic diseases by leveraging the strengths of our Symphony platform. We intend to target sales
and marketing of Symphony to large critical care facilities in the United States. Our business model includes the following:
| ● | Attractive Financing Model. We intend to offer various financing options for the analyzer itself. As such,
our business model should not require customers to incur a significant capital outlay. |
| ● | Recurring Revenue. We intend to sell single-use diagnostic test cartridges. We believe that our cartridges
can create a growing and recurring revenue stream, as adoption and utilization increases, and as we develop tests for additional indications.
We expect the sale of our test cartridges will generate the majority of our revenue and gross profit. |
| ● | Expand our Menu of Diagnostic Products. As adoption increases, the customer use of the Symphony platform
should also increase. As we expand our test menu to include more biomarkers, we hope to be able to increase our annual revenue per customer
through the resulting increase in utilization. |
The Symphony Platform
The Symphony platform is an innovative and proprietary
technology platform that provides rapid and accurate measurements of key diagnostic biomarkers found in biological fluids, such as whole
blood. Symphony is compact and can be deployed mobile as compared to current laboratory diagnostic platforms. Symphony incorporates a
user-friendly interface where all sample preparation and reagents are integrated into disposable Symphony cartridges. Symphony a very
small amount of blood (0.15cc or 0.15mL) to provide a measurement in less than 20 minutes.
The Symphony analyzer orchestrates whole blood
processing, biomarker isolation, and immunoassay preparation using non-contact centrifugal force. All necessary reagents and components
are integrated into the Symphony cartridges. Utilizing precision microchannel technology and high-specificity antibodies, whole blood
is processed, and the biomarkers are isolated within the Symphony cartridge. Intermitted centrifugation cycles enable complex fluid movements,
allowing sequential reagent additions and independent reaction steps inside the sealed Symphony cartridge. At the conclusion of the test,
the Symphony analyzer measures the fluorescence signature correlating to a highly sensitive quantitation of the biomarker.
To perform a Symphony test, the test operator
adds 0.15cc or 0.15mL (approximately three drops) of blood to the Symphony cartridge. After scanning in the patient ID, the Symphony cartridge
is inserted into the Symphony analyzer and the test runs automatically. Each analyzer can run up to six cartridges simultaneously, either
with six different patient samples or six different tests, in less than 20 minutes, providing quantitative measurements used for improved
patient management and clinical decision-making.
Manufacturing
We plan to manufacture both our analyzers and cartridges through Contract
Manufacturing Organizations (“CMOs”). We have contracts with Toray Industries, Inc (“Toray”), to license the intellectual
property rights needed to manufacture our cartridges and Sanyoseiko Co. Ltd. (“Sanyoseiko”), to manufacture both our analyzers
and cartridges. Each of our partners are well-established global manufacturing companies with capabilities to scale up, re-design and
supply our analyzers and cartridges.
Sanyoseiko had been selected as our CMO, though
in the near-term Toray will continue to manufacture certain product intermediary components for use in cartridges being manufactured for
the Company by Sanyoseiko. These cartridges made using Toray intermediates are for the purpose of obtaining FDA approval and not for commercial
sale. We expect to meet the demands of our global market. Both Toray’s and Sanyoseiko’s facilities are located in Japan. We
license the technology for the Symphony cartridges from Toray. Our license grants us exclusive global use, with the exception of Japan.
FDA Regulatory Strategy
Our current regulatory strategy is designed
to support commercialization of Symphony in the United States pending marketing authorization from the FDA. Previously, our regulatory
strategy involved clinical studies involving COVID-19 patients. However, we have shifted our focus away from COVID-19 patients due to
a significant decline in the number of COVID-19 related hospitalizations. Pursuant to this revised strategy, we are beginning to conduct
a clinical study to support an FDA regulatory submission with an initial indication for risk stratification of hospitalized sepsis patients.
We submitted a pre-submission application to the FDA presenting the new study design in May 2023 and participated in a pre-submission
meeting on August 11, 2023. At the meeting, the FDA provided feedback on the new study design, determined that the submission of a 510(k)
is the appropriate premarket submission pathway, and requested that certain data be provided in the 510(k). Based on this feedback, we
determined to proceed on this basis, which considers the FDA’s feedback.
In December 2023, we initiated the study at
an initial site, which will use the Symphony IL-6 test to monitor IL-6 concentrations in patients who are diagnosed with sepsis or septic
shock and are admitted or intended to be admitted to the ICU. The objective of this study is to establish IL-6 concentrations in these
sepsis patients that best predict 28-day mortality. We except to bring several additional sites into the study in the coming months.
We are working towards a Symphony IL-6 regulatory submission timeline of the first half of 2024.
We maintain contracts with Toray to manufacture
our cartridges and Sanyoseiko to manufacture both our analyzers and cartridges.
Sales and Marketing
Until Symphony products are authorized by the
FDA, we expect to focus our sales and marketing efforts on brand awareness and market education to potential customers, emphasizing the
value of monitoring a critical care patient’s IL-6 levels to improve decision making and patient outcomes. If cleared or approved
by the FDA, we intend to target sales to ERs and ICUs at United States hospitals, as well as to long-term acute care facilities. We plan
to establish a market presence by selling Symphony analyzers and tests both directly and through various distribution channels to maximize
sales volume and market penetration.
License Agreement
On October 6, 2020, we entered into a License
and Supply Agreement, as amended (the “License Agreement”), with Toray, providing us with an exclusive global license with
Toray, excluding Japan, to use their patents and know-how related to the Symphony detection cartridges for the manufacturing, marketing
and sale of the products (as defined in the License Agreement).
On October 23, 2023, we entered into an Amended
and Restated License Agreement (the “New Toray License Agreement”) and a Master Supply Agreement (the “New Toray Supply
Agreement” and, together, the “Toray Agreements”) with Toray. Under the New Toray License Agreement, we continue to
license from Toray intellectual property rights needed to manufacture single-use test cartridges, and we have received the right to sublicense
certain Toray intellectual property to Sanyoseiko in connection with our ongoing agreement with Sanyoseiko to manufacture our Symphony
analyzers and cartridges. In addition, the New Toray License Agreement provides for the transfer of certain technology related to the
cartridges to Sanyoseiko. The royalty payments we are required to pay Toray have been reduced under the New Toray License Agreement from
15% to 7.5% (or less in certain circumstances) of net sales of certain cartridges for a term of 10 years. A 50% reduction in the royalty
rate applies upon expiry of applicable Toray patents on a product-by-product and country-by-country basis. The New Toray License Agreement
contemplates that applicable royalty payment obligations from us to Toray for other products will be determined separately in the future.
Under the New Toray Supply Agreement, Toray
will manufacture in the near-term (through its wholly owned subsidiary Kamakura Techno-Science, Inc.) certain product intermediary
components for use in cartridges being manufactured for the Company by Sanyoseiko. These cartridges made using Toray intermediates
are for the purpose of obtaining FDA approval and not for commercial sale. The New Toray Supply Agreement has a term ending on the
earlier of October 23, 2025 or the date that we obtain FDA approval for our product, and may be extended for up to six months by
mutual agreement. Once FDA approval has been obtained, the intermediates and cartridges will be manufactured by Sanyoseiko under a
separate supply agreement between us and Sanyoseiko. The FDA may not clear or approve these product submissions or applications on a timely basis or at all. Such delays or refusals could
have a material adverse effect on our business, financial condition, and results of operations.
Intellectual Property, Proprietary Technology
We do not currently hold any patents directly.
We rely on a combination either directly or through the New Toray License Agreement with Toray of patent, copyright, trade secret, trademark,
confidentiality agreements, and contractual protection to establish and protect our proprietary rights.
Competition
Our primary competition in the IL-6 market is
laboratory size equipment including the Roche Cobas®, Siemens ADVIA Centaur® and Beckman Coulter Access 2®, which require
pre-processing of whole blood prior to performing their test. We believe that our technology, which uses whole blood, provides us with
a substantial competitive advantage over our existing competition that will sustain through commercialization, despite the major life
science companies and consistent entry of innovative start-ups that define our competitive landscape.
Employees
As of December 20, 2023, we have 10 full-time
employees. We also contract with several consultants and contractors performing accounting, finance, regulatory advisory, investor relations
and manufacturing scale-up support. None of our employees are represented by labor unions or covered by collective bargaining agreements.
August 2023 Registered Direct Offering and Concurrent Private Placement
On August 24, 2023, we entered into a securities
purchase agreement with certain institutional and accredited investors (the “August 2023 Purchase Agreement”) relating to
the registered direct offering and sale of 216,000 shares (the “August 2023 Offering”) of our common stock, and a concurrent
private placement (the “August 2023 Private Placement”) of unregistered warrants to purchase up to 216,000 shares of our common
stock (the “August 2023 Warrants”). Each August 2023 Warrant is exercisable for one share of common stock (the “August
2023 Warrant Shares”) at an exercise price of $7.24 per share, will be immediately exercisable upon issuance and will expire five
years from the date of issuance.
The common stock sold in the August 2023 Offering
was sold at a purchase price of $7.365 per share (which amount included a purchase price of $0.125 per accompanying August 2023 Warrant).
Our gross proceeds from the August 2023 Offering and the August 2023 Private Placement were approximately $1.59 million, before deducting
placement agent fees and offering expenses.
Pursuant to an engagement letter, dated as of August 7, 2023, by and
between us and H.C. Wainwright & Co., LLC (“Wainwright”), as a part of compensation, we issued to Wainwright or its designees,
warrants to purchase up to 15,120 shares of common stock (the “August 2023 Placement Agent Warrants”). The August 2023 Placement
Agent Warrants have substantially the same terms as the August 2023 Warrants, except that the August 2023 Placement Agent Warrants have
an exercise price equal to $9.2063 per share and a term of five years from the commencement of the sales pursuant to the August 2023 Offering.
The August 2023 Offering and August 2023 Private Placement closed on
August 28, 2023.
Reverse Stock Split
On July 24, 2023, we effected a reverse stock split of our shares of
common stock at a ratio of 1-for-20 (the “Reverse Stock Split”), with a corresponding reduction in the number of authorized
outstanding number of shares of common stock from 100,000,000 to 7,500,000. The Reverse Stock Split became effective on July 24, 2023,
when the Company’s common stock opened for trading on Nasdaq on a post-split basis under the Company’s existing trading symbol,
“BJDX.” All historical share and per share amounts reflected throughout this prospectus have been adjusted to reflect the
Reverse Stock Split. However, our periodic and current reports, and all other documents incorporated by reference into this prospectus
that were filed prior to July 24, 2023, do not give effect to the Reverse Stock Split.
Nasdaq Minimum Bid Price Requirement
On October 25, 2022, we received a notification
letter from the Nasdaq Listing Qualifications Staff of Nasdaq notifying us that the closing bid price for our common stock had been below
$1.00 for the previous 30 consecutive business days and that we therefore were not in compliance with the minimum bid price requirement
for continued listing on Nasdaq under Nasdaq Listing Rule 5550(a)(2). On April 25, 2023, at our request, Nasdaq’s Listing Qualifications
Staff notified us that it has extended the time for the Company to regain compliance with the Minimum Bid Requirement until October 23,
2023.
On August 8, 2023, we received a letter from the
Listing Qualifications Department of Nasdaq notifying us that, based on the closing bid price of our common stock having been at least
$1.00 per share for the required period, we have regained compliance with Nasdaq Listing Rule 5550(a)(2) and the minimum bid price deficiency
matter is now closed.
Risks Associated with Our Business
Our business is subject to a number of risks of
which you should be aware before making an investment decision. These risks are discussed more fully in the “Risk Factors”
section of this prospectus immediately following this prospectus summary and in Part I, Item 1A “Risk Factors” of our Annual
Report on Form 10-K for the fiscal year ended December 31, 2022 and in Part II, Item 1A “Risk Factors” of our Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, which are each incorporated by reference
in this prospectus. These risks include the following:
| ● | We have incurred significant losses since inception and may not be able to achieve significant revenues or profitability. |
| ● | We will require substantial additional funding, which may not be available to us on acceptable terms, or at all, and, if not so available,
may require us to delay, limit, reduce or cease our operations. |
| ● | The New License Agreement with Toray, which covers the license of the
core technology used in our Symphony Cartridges, and the New Supply Agreement with Toray, which covers the supply of cartridge intermediates
from Toray to Sanyoseiko for Sanyoseiko to manufacture our cartridges, contain significant risks that may threaten our viability or otherwise
have a material adverse effect on us and our business, assets and prospects. |
| ● | We depend on, and are liable for, Sanyoseiko as our primary contract
manufacturing organization (CMO), so its inability or failure to perform appropriately in that capacity may threaten our viability or
have a material adverse effect on us and our business, assets and its prospects. |
| ● | We cannot accurately predict the volume or timing of any sales, making the timing of any revenues difficult to predict. |
| ● | If third-party payors do not provide coverage and reimbursement for the use of our platform, our business and prospects may be negatively
impacted. |
| ● | If we are not able to attract and retain highly skilled managerial, scientific and technical personnel, we may not be able to implement
our business model successfully. |
| ● | Significant raw material shortages, supplier capacity constraints, supplier disruptions, and sourcing issues may adversely impact
or limited our products sales and or impact our product margins. |
| ● | The regulatory approval process which we may be required to navigate may be expensive, time-consuming, and uncertain and may prevent
us from obtaining clearance for our planned products |
| ● | Product clearances and approvals can often be denied or significantly delayed. |
| ● | Clinical data obtained in the future may not meet the required objectives, which could delay, limit or prevent any regulatory approval. |
| ● | We may be unable to complete required clinical evaluations, or we may experience significant delays in completing such clinical evaluations,
which could prevent or significantly delay our targeted product launch timeframe and impair our viability and business plan. |
| ● | We may be liable if the FDA or another regulatory agency concludes that we have engaged in the off-label promotion of our products. |
| ● | We depend on intellectual property licensed from Toray, and any dispute over the license would significantly harm our business. |
| ● | We face intense competition in the diagnostic testing market, particularly in the IL-6 space, and as a result we may be unable to
effectively compete in our industry. |
| ● | If we or Toray fail to respond quickly to technological developments, our products may become uncompetitive and obsolete. |
| ● | Shares eligible for future sale may adversely affect the market for our common stock. |
Implications of Being an Emerging Growth Company
We are an emerging growth company as defined in
the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). We may remain an “emerging growth company” until
as late as December 31, 2027 (the fiscal year-end following the fifth anniversary of the completion of our initial public offering, though
we may cease to be an “emerging growth company” earlier under certain circumstances, including (1) if the market value of
our common stock that is held by nonaffiliates exceeds $700 million as of any June 30, in which case we would cease to be an “emerging
growth company” as of the following December 31, or (2) if our gross revenue exceeds $1.235 billion in any fiscal year. “Emerging
growth companies” may take advantage of certain exemptions from various reporting requirements that are applicable to other public
companies, including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from
the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments
not previously approved. Investors could find our common stock less attractive because we may rely on these exemptions. If some investors
find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price
may be more volatile.
In addition, Section 102 of the JOBS Act also
provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B)
of the Securities Act, for complying with new or revised accounting standards. An “emerging growth company” can therefore
delay the adoption of certain accounting standards until those standards would otherwise apply to private companies.
Corporate Information
We were incorporated under the laws of the State
of Delaware on March 20, 2015. Our principal executive offices are located at 360 Massachusetts Avenue, Suite 203, Acton, MA 01720
and our telephone number is (844) 327-7078. Our website address is www.bluejaydx.com. We do not incorporate the information on, or accessible
through, our website into this prospectus, and you should not consider any information on, or accessible through, our website as part
of this prospectus.
THE OFFERING
Common Stock to be Offered |
|
Up to 2,026,958 shares based on the sale of our common stock
at an assumed combined public offering price of $2.9601 per share of common stock and accompanying Common Warrant, which is the closing
price of our common stock on Nasdaq on December 20, 2023, and assuming no sale of any Prefunded Warrants. |
|
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Prefunded Warrants to be Offered |
|
We are also offering to certain purchasers whose
purchase of shares of common stock in this offering would otherwise result in the purchaser, together with its affiliates and certain
related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately
following the consummation of this offering, the opportunity to purchase, if such purchasers so choose, Prefunded Warrants to purchase
shares of common stock, in lieu of shares of common stock that would otherwise result in any such purchaser’s beneficial ownership
exceeding 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock. Each Prefunded Warrant will be exercisable
for one share of our common stock. The purchase price of each Prefunded Warrant and accompanying Common Warrant will equal the price at
which the share of common stock and accompanying Common Warrant are being sold to the public in this offering, minus $0.0001, and the
exercise price of each Prefunded Warrant will be $0.0001 per share. The Prefunded Warrants will be exercisable immediately and may be
exercised at any time until all of the Prefunded Warrants are exercised in full.
This offering also relates to the shares of common
stock issuable upon exercise of the Prefunded Warrants sold in this offering. For each Prefunded Warrant we sell, the number of shares
of common stock we are offering will be decreased on a one-for-one basis. Because we will issue a Common Warrant for each share of our
common stock and for each Prefunded Warrant sold in this offering, the number of Common Warrants sold in this offering will not change
as a result of a change in the mix of the shares of our common stock and Prefunded Warrants sold. |
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|
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Common Warrants to be Offered |
|
Each share of our common stock and each
Prefunded Warrant to purchase one share of our common stock is being sold together with a Common Warrant to purchase share of our
common stock. Each Common Warrant will have an exercise price of $ per share (representing % of the price at which a share of common
stock and accompanying Common Warrant are sold to the public in this offering), will be immediately exercisable and will expire on
the anniversary of the original issuance date.
The shares of common stock and Prefunded
Warrants, and the accompanying Common Warrants, as the case may be, can only be purchased together in this offering but will be issued
separately and will be immediately separable upon issuance. This prospectus also relates to the offering of the shares of common
stock issuable upon exercise of the Common Warrants. |
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Lock-up Agreements |
|
We and all of our executive
officers and directors will enter into lock-up agreements with the placement agent. Under these agreements, we and each of these
persons may not, without the prior written approval of the placement agent, offer, sell, contract to sell or otherwise dispose of
or hedge common stock or securities convertible into or exchangeable for common stock, subject to certain exceptions. The restrictions
contained in these agreements will be in effect for a period of 60 days after the date of the securities purchase agreement. For
more information, see “Plan of Distribution.” |
|
|
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Placement Agent Warrants |
|
We have agreed to issue
to the placement agent or its designees as compensation in connection with this offering, the placement agent warrants to purchase
up to 7.0% of the aggregate number of shares of common stock sold in this offering (including the shares of common stock issuable
upon the exercise of the Prefunded Warrants) at an exercise price equal to 125% of the combined public offering price per share and
accompanying Common Warrant to be sold in this offering. The placement agent warrants will be exercisable upon issuance and will
expire five years from the commencement of sales under this offering. |
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Common Stock Outstanding After This Offering (1) |
|
3,266,098 shares (assuming we sell only shares of common stock and no Prefunded Warrants and assuming
no exercise of the Common Warrants). |
Use of Proceeds |
|
We estimate that
the net proceeds from this offering will be approximately $5.1 million, based on an assumed combined public
offering price of $2.9601 per share of common stock and accompanying Common Warrant which was the closing
price of our common stock on Nasdaq on December 20, 2023, after deducting the placement agent fees and
estimated offering expenses payable by us, and assuming we sell only shares of common stock and no Prefunded
Warrants and excluding the proceeds, if any, from the exercise of the Common Warrants in this offering.
We currently intend to use the net proceeds
from the offering to fund matters related to obtaining FDA approval (including clinical studies related thereto), as well as for
other research and development activities, and for general working capital needs. We may also use a portion of the net proceeds to
acquire or invest in complementary businesses, products and technologies or to fund the development of any such complementary businesses,
products or technologies. We currently have no plans for any such acquisitions or investments. See “Use of Proceeds”
beginning on page 15. |
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Risk Factors |
|
See “Risk Factors” beginning on page 8 of this prospectus and other information included and incorporated by reference in this prospectus for a discussion of the risk factors you should consider carefully when making an investment decision. |
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Nasdaq Symbol |
|
Our common stock is listed on Nasdaq under the symbol “BJDX.” There is no established trading market for the Common Warrants or the Prefunded Warrants, and we do not expect a trading market to develop. We do not intend to list the Common Warrants or the Prefunded Warrants on any securities exchange or other trading market. Without a trading market, the liquidity of the Common Warrants and the Prefunded Warrants will be extremely limited. |
(1) |
The number of shares of our common stock to be outstanding after this
offering is based on 1,239,140 shares of our common stock outstanding as of December 20, 2023, and, unless otherwise indicated, excludes,
as of that date: |
|
● |
31,361 shares of common stock issuable upon the exercise of stock options
outstanding as of December 20, 2023 at a weighted average exercise price of $36.28 per share; |
|
● |
216,000 shares of common stock issuable upon the exercise of the August
2023 Warrants outstanding as of as of December 20, 2023 at an exercise price of $7.24 per share; |
|
● |
15,120 shares of common stock issuable upon the exercise of the August
2023 Placement Agent Warrants outstanding as of as of December 20, 2023 at an exercise price of $9.2063 per share; |
|
● |
40,594 shares of common
stock issuable upon the exercise of additional Common Stock warrants outstanding as of December 20, 2023 at a weighted average exercise
price of $64.73 per share; |
|
● |
124,200 shares of common
stock issuable upon the exercise of Class A warrants outstanding as of December 20, 2023 at an exercise price of $140.00; |
|
● |
3,770 shares of common
stock issuable upon the exercise of Class B warrants outstanding as of December 20, 2023 at an exercise price of $200.00; |
|
● |
13,113 shares of common
stock available for future issuance under our 2018 Stock Incentive Plan as of December 20, 2023; |
|
● |
40,377 shares of common
stock available for grant under the 2021 Stock Incentive Plan as of December 20, 2023; and |
|
● |
7,875 unvested restricted
stock units outstanding as of December 20, 2023. |
Except as otherwise indicated, the information
in this prospectus assumes: (i) no sale of the Prefunded Warrants in this offering, which, if sold, would reduce the number of shares
of common stock that we are offering on an one-for-one basis; (ii) no exercise of any Common Warrants to be issued in this offering;
(iii) no exercise of the placement agent warrants to be issued to the placement agent or its designees as compensation in connection
with this offering; and (iv) no exercise of the options or warrants described above.
RISK FACTORS
An investment in our securities involves a
high degree of risk. Before deciding whether to invest in our securities, you should carefully consider the risks described below and
those discussed under the section captioned “Risk Factors” contained in our Annual Report on Form 10-K for the fiscal year
ended December 31, 2022 and our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30,
2023, which are incorporated by reference in this prospectus, together with the information included in this prospectus and documents
incorporated by reference herein, and in any free writing prospectus that we have authorized for use in connection with this offering.
If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be harmed. In such
event, the trading price of our common stock and value of the Prefunded Warrants and Common Warrants could decline and you might lose
all or part of your investment. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently believe to be immaterial may also adversely affect our business. Certain statements below
are forward-looking statements.
Risks Related to Our Financial Condition and
Capital Requirements
We have incurred significant losses since
our inception and may continue to incur losses and thus may never achieve or maintain profitability.
We have incurred substantial losses since our
inception, and we expect to continue to incur additional losses for the next several years. For the three months ended September 30, 2023,
we had a net loss of approximately $2.3 million. From our inception through September 30, 2023, we had an accumulated deficit of $24.6
million. We had cash and cash equivalents of $5.1 million as of September 30, 2023. We continue to develop the Symphony analyzer and its
first test for the measurement of IL-6. We remain committed to obtaining FDA clearance and plan to conduct clinical trials to obtain sufficient
data to support its FDA submission, while also continuing to build its manufacturing operations with its contract manufacturing organizations.
Expected future operating losses will have an adverse effect on our cash resources, stockholders’ equity and working capital. Our
liquidity position raises substantial doubt about our ability to continue as a going concern.
Our failure to become and remain profitable could
depress the value of our common stock and impair our ability to raise capital, expand our business, maintain our development efforts,
or continue our operations. A decline in the value of our common stock could also cause you to lose all or part of your investment.
The report of our independent registered public
accounting firm on our financial statements for the year ended December 31, 2022 included an emphasis of matter paragraph stating that
our recurring losses from operations and continued cash outflows from operating activities raised substantial doubt about our ability
to continue as a going concern. Our consolidated financial statements do not include any adjustments
that might result from the outcome of this going concern uncertainty and have been prepared under the assumption that we will continue
to operate as a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of
business. If we are unable to continue as a going concern, we may be forced to liquidate our assets which would have an adverse impact
on our business and developmental activities. In such a scenario, the values we receive for our assets in liquidation or dissolution could
be significantly lower than the values reflected in our financial statements. The reaction of investors to the inclusion of a going concern
statement by our independent registered public accounting firm and our potential inability to continue as a going concern may materially
adversely affect our stock price and our ability to raise new capital.
We will need to
raise additional funding to fund our working capital needs. Additional financing may not be available on acceptable terms, or at all.
Failure to obtain additional capital may force us to limit or terminate our operations.
Even if we sell all securities offered hereby,
the expected net proceeds of this offering may not be sufficient for us to fund the working capital needs of our business. We will continue
to seek funds through equity or debt financings, collaborative or other arrangements with corporate sources, or through other sources
of financing. Additional funding may not be available to us on acceptable terms, or at all. If adequate funds are not available or are
not available on acceptable terms, we may be required to delay our FDA regulatory strategy, and
to delay or reduce the scope of our research or development programs, our commercialization efforts or our manufacturing commitments and
capacity. Such inability to obtain additional financing when needed could have a material adverse effect on our business, results
of operations, cash flow, financial condition and prospects.
Risks Related to this Offering and our Common
Stock
Purchasers who purchase our securities in
this offering pursuant to a securities purchase agreement may have rights not available to purchasers that purchase without the benefit
of a securities purchase agreement.
In addition to rights and remedies available
to all purchasers in this offering under federal securities and state law, the purchasers that enter into a securities purchase agreement
will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract provides those
investors with the means to enforce the covenants uniquely available to them under the securities purchase agreement including: (i) timely
delivery of shares; (ii) agreement to not enter into variable rate financings for one year from closing, subject to certain exceptions;
(iii) agreement to not enter into any financings for 60 days from closing; and (iv) indemnification for breach of contract.
This is a best efforts offering, with no
minimum amount of securities is required to be sold, and we may not raise the amount of capital we believe is required for our business
plans, including our near-term business plans, nor will investors in this offering receive a refund in the event that we do not sell an
amount of securities sufficient to pursue the business goals outlined in this prospectus.
The placement agent has agreed to use its reasonable
best efforts to solicit offers to purchase the securities in this offering. The placement agent has no obligation to buy any of the securities
from us or to arrange for the purchase or sale of any specific number or dollar amount of the securities. We may sell fewer than all of
the securities offered hereby, which may significantly reduce the amount of proceeds received by us, and investors in this offering will
not receive a refund in the event that we do not sell an amount of securities sufficient to support our business goals, continued operations,
including our near-term continued operations. Thus, we may not raise the amount of capital we believe is required for our operations in
the short-term and may need to raise additional funds to complete such short-term operations. Such additional fundraises may not be available
or available on terms acceptable to us, or at all.
There is no required minimum number of securities
that must be sold as a condition to completion of this offering, and we have not, nor will we, establish an escrow account in connection
with this offering. Because there is no minimum offering amount required as a condition to the closing of this offering, the actual offering
amount, placement agent fees and proceeds to us are not presently determinable and may be substantially less than the maximum amounts
set forth herein. Because there is no escrow account and no minimum offering amount, investors could be in a position where they have
invested in us, but we are unable to fulfill our objectives due to a lack of interest in this offering. Further, because there is no escrow
account in operation and no minimum investment amount, any proceeds from the sale of securities offered by us will be available for our
immediate use, despite uncertainty about whether we would be able to use such funds to effectively implement our business plan. Investor
funds will not be returned under any circumstances whether during or after the offering.
We have broad discretion in how we use the
net proceeds of this offering, and we may not use these proceeds effectively or in ways with which you agree.
Our management will have broad discretion as to
the application of the net proceeds of this offering and could use them for purposes other than those contemplated at the time of the
offering. We currently intend to use the net proceeds from the offering to fund matters related to obtaining FDA approval (including clinical
studies related thereto), as well as for other research and development activities, and for general working capital needs. We may also
use a portion of the net proceeds to acquire or invest in complementary businesses, products and technologies or to fund the development
of any such complementary businesses, products or technologies, though we currently have no plans for any such acquisitions or investments.
Our stockholders may not agree with the manner in which our management chooses to allocate and spend the net proceeds. Moreover, our management
may use the net proceeds for corporate purposes that may not increase the market price of our common stock.
If you purchase our securities in this offering,
you may experience future dilution as a result of future equity offerings or other equity issuances.
In
order to raise additional capital, we believe that we will offer and issue additional shares
of our common stock or other securities convertible into or exchangeable for our common stock
in the future. We are generally not restricted from issuing additional securities, including
shares of common stock, securities that are convertible into or exchangeable for, or that
represent the right to receive, common stock or substantially similar securities. The issuance
of securities in future offerings may cause dilution to our stockholders, including investors
in this offering. We cannot assure you that we will be able to sell shares or other securities
in any other offering at a price per share that is equal to or greater than the price per
share paid by investors in this offering, and investors purchasing other securities in the
future could have rights superior to existing stockholders. The price per share at which
we sell additional shares of our common stock or other securities convertible into or exchangeable
for our common stock in future transactions may be higher or lower than the price per share
in this offering.
In addition, we have a significant number
of stock options, restricted stock units and warrants outstanding. To the extent that outstanding stock options or warrants have been
or may be exercised or other shares issued, you may experience dilution. Further, we may choose to raise additional capital due to market
conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans.
The market price of our common stock and
the trading volume of our common stock has been and may continue to be, highly volatile, and such volatility could cause the market price
of our common stock to decrease.
During 2022 and 2023, the market price of our
common stock was volatile, and our stock price continues to fluctuate. The market price and trading volume of our common stock may continue
to fluctuate significantly in response to numerous factors, some of which are beyond our control, such as:
| ● | the success of competitive products or technologies; |
| ● | regulatory actions with respect to our product candidates or our competitors’ products; |
| ● | the ability of our third-party manufacturers and suppliers to meet our demand volume; |
| ● | actual or anticipated changes in our growth rate relative to our competitors; |
| ● | announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures,
collaborations or capital commitments; |
| ● | developments or disputes concerning patent applications, issued patents or other proprietary rights; |
| ● | the level of expenses related to our clinical development programs; |
| ● | the results of our efforts to in-license or acquire additional product candidates or products; |
| ● | actual or anticipated changes in estimates as to financial results, development timelines or recommendations
by securities analysts; |
| ● | variations in our financial results or those of companies that are perceived to be similar to us; |
| ● | fluctuations in the valuation of companies perceived by investors to be comparable to us; |
| ● | share price and volume fluctuations attributable to inconsistent trading volume levels of our shares; |
| ● | announcement or expectation of additional financing efforts; |
| ● | sales of our common stock by us, our insiders or our other stockholders; and |
| ● | other events or factors, many of which are beyond our control. |
Further, the stock market in general, and the
market for health care and life sciences companies in particular, has recently experienced extreme price and volume fluctuations. The
volatility of our common stock is further exacerbated due to its low trading volume. Continued market fluctuations could result in extreme
volatility in the price of our common stock, which could cause a decline in the value of our common stock and the loss of some or all
of your investment.
Trading of our common stock is limited,
making it difficult for our stockholders to sell their shares, and future sales of common stock could reduce our stock price.
Trading of our common stock is currently conducted
on Nasdaq. The liquidity of our common stock is limited, including in terms of the number of shares that can be bought and sold at a given
price and reduction in security analysts’ and the media’s coverage of us, if any. These factors may result in different prices
for our common stock than might otherwise be obtained in a more liquid market and could also result in a larger spread between the bid
and asked prices for our common stock. In addition, in the absence of a large market capitalization, our common stock is less liquid than
the stock of companies with broader public ownership, and, as a result, the trading prices of our common stock may be more volatile. In
the absence of an active public trading market, an investor may be unable to liquidate his investment in our common stock. Trading of
a relatively small volume of our common stock may have a greater impact on the trading price of our stock. We cannot predict the prices
at which our common stock will trade in the future, if at all.
The exercise of outstanding common stock
purchase warrants and stock options and the settlement of outstanding restricted stock units will have a dilutive effect on the percentage
ownership of our capital stock by existing stockholders.
As of December 20, 2023, we had outstanding
warrants to acquire 399,684 shares of our common stock, stock options to purchase 31,361 shares of our common stock, and restricted stock
units to acquire 7,875 shares of our common stock. All such warrants have exercise prices above our common stock’s recent trading
prices, but certain holders have the right to effect a cashless exercise of such warrants. If a significant number of such warrants and
stock options are exercised by the holders, the percentage of our common stock owned by our existing stockholders will be diluted. Further,
settlement of the outstanding restricted stock units will cause dilution to our existing stockholders.
We do not currently intend to pay dividends
on our common stock in the foreseeable future, and consequently, your ability to achieve a return on your investment will depend on appreciation
in the price of our common stock.
We do not anticipate paying any cash dividends
to holders of our common stock in the foreseeable future. Consequently, investors must rely on sales of their common stock after price
appreciation, which may never occur, as the only way to realize any future gains on their investments. There is no guarantee that shares
of our common stock will appreciate in value or even maintain the price at which our stockholders have purchased their shares.
There is no public market for the Common
Warrants or Prefunded Warrants to purchase shares of our common stock being offered by us in this offering.
There is no established public trading market
for the Common Warrants or the Prefunded Warrants to purchase shares of our common stock that are being offered as part of this offering,
and we do not expect a market to develop. In addition, we do not intend to apply to list the Common Warrants or Prefunded Warrants on
any national securities exchange or other nationally recognized trading system, including Nasdaq. Without an active market, the liquidity
of the Common Warrants and Prefunded Warrants will be limited.
The Common Warrants
are speculative in nature.
The Common Warrants offered hereby do not
confer any rights of share of common stock ownership on their holders, such as voting rights or the right to receive dividends, but rather
merely represent the right to acquire shares of common stock at a fixed price. Specifically, commencing on the date of issuance, holders
of the Common Warrants may acquire the shares of common stock issuable upon exercise of such warrants at an exercise price of $ per
share of common stock. Moreover, following this offering, the market value of the Common Warrants is uncertain and there can be no assurance
that the market value of the Common Warrants, if any, will equal or exceed their public offering prices. There can be no assurance that
the market price of the shares of common stock will ever equal or exceed the exercise price of the Common Warrants, and consequently,
whether it will ever be profitable for holders of Common Warrants to exercise the Common Warrants.
Holders of the Prefunded Warrants and the
Common Warrants offered hereby will have no rights as common stockholders with respect to the shares our common stock underlying the warrants
until such holders exercise their warrants and acquire our common stock, except as otherwise provided in the Prefunded Warrants and the
Common Warrants.
Until holders of the Common Warrants and the Prefunded
Warrants acquire shares of our common stock upon exercise thereof, such holders will have no rights with respect to the shares of our
common stock underlying such warrants, except to the extent that holders of such Common Warrants and Prefunded Warrants will have certain
rights to participate in distributions or dividends paid on our common stock as set forth in the Common Warrants and the Prefunded Warrants.
Upon exercise of the Common Warrants and the Prefunded Warrants, the holders will be entitled to exercise the rights of a common stockholder
only as to matters for which the record date occurs after the exercise date.
This offering may
cause the trading price of our shares of common stock to decrease.
The price per share,
together with the number of shares of common stock we propose to issue and ultimately will issue if this offering is completed, may result
in an immediate decrease in the market price of our shares. This decrease may continue after the completion of this offering.
Resales of our shares of common stock in
the public market by our stockholders as a result of this offering may cause the market price of our shares of common stock to fall.
We are registering 2,026,958 shares of
common stock, as well as 2,026,958 shares of common stock, in the aggregate, issuable upon the exercise of the Prefunded Warrants and
the Common Warrants offered under this prospectus. Sales of substantial amounts of our shares of common stock in the public market, or
the perception that such sales might occur, could adversely affect the market price of our shares of common stock. The issuance of new
shares of common stock could result in resales of our shares of common stock by our current shareholders concerned about the potential
ownership dilution of their holdings. Furthermore, in the future, we may issue additional shares of common stock or other equity or debt
securities exercisable or convertible into shares of common stock. Any such issuance could result in substantial dilution to our existing
shareholders and could cause our stock price to decline.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
herein by reference contain forward-looking statements which are made pursuant to the safe harbor provisions of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. In some
cases, you can identify these statements by forward-looking words such as “may,” “might,” “should,”
“would,” “could,” “expect,” “plan,” “anticipate,” “intend,” “believe,”
“estimate,” “predict,” “potential” or “continue,” and the negative of these terms and
other comparable terminology. These forward-looking statements, which are subject to known and unknown risks, uncertainties and assumptions
about us, may include projections of our future financial performance based on our growth strategies and anticipated trends in our business.
These statements are only predictions based on our current expectations and projections about future events. There are important factors
that could cause our actual results, level of activity, performance or achievements to differ materially from the results, level of activity,
performance or achievements expressed or implied by the forward-looking statements. We have included important factors in the cautionary
statements included in this prospectus, particularly under “Risk Factors” on page 8 of this prospectus and the documents
incorporated herein that we believe could cause actual results or events to differ materially from the forward-looking statements that
we make.
While we believe we have identified material risks
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and our Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2023, June 30, 2023 and September 30, 2023, which are incorporated by reference in this prospectus, together with the
information included in this prospectus and the documents incorporated by reference herein, and in any free writing prospectus that we
have authorized for use in connection with this offering, these risks and uncertainties are not exhaustive. Other sections of this prospectus
and the documents incorporated herein by reference may describe additional factors that could adversely impact our business and financial
performance. Moreover, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time
to time, and it is not possible to predict all risks and uncertainties, nor can we assess the impact of all factors on our business or
the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking
statements.
Although we believe the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee future results, level of activity, performance or achievements.
Moreover, neither we nor any other person assumes responsibility for the accuracy or completeness of any of these forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. You should read this prospectus and any free writing
prospectus and the documents that we have incorporated by reference to this prospectus and filed as exhibits to this prospectus completely
and with the understanding that our actual future results may be materially different from what we expect.
We caution you not to place undue reliance on
the forward-looking statements, which speak only as of the date of this prospectus in the case of forward-looking statements contained
in this prospectus.
You should not rely upon forward-looking statements
as predictions of future events. Our actual results and financial condition may differ materially from those indicated in the forward-looking
statements. We qualify all of our forward-looking statements by these cautionary statements. Although we believe that the expectations
reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
Therefore, you should not rely on any of the forward-looking statements. In addition, with respect to all of our forward-looking statements,
we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of
1995.
Except as required by law, we undertake no obligation
to update or revise any forward-looking statements to reflect new information or future events or developments. You should not assume
that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. Before
deciding to purchase our securities, you should carefully consider the risk factors discussed and incorporated by reference in this prospectus
and the documents incorporated herein.
SELECTED
FINANCIAL DATA
Reverse Stock Split
On July 24, 2023, we effected the Reverse
Stock Split, with a corresponding reduction in the number of authorized outstanding number of shares of common stock from 100,000,000
to 7,500,000. The Reverse Stock Split became effective on July 24, 2023.The par value per share of our common stock also remained unchanged.
The following selected financial data has
been derived from our audited financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2022, filed
with the SEC on March 20, 2023, and our unaudited financial statements included in our Quarterly Report on Form 10-Q for the quarterly
period ended March 30, 2023, filed with the SEC on May 11, 2023, as adjusted to reflect the Reverse Stock Split for all periods presented.
The as adjusted information reflecting the Reverse Stock Split for the quarterly periods ended June 30, 2023 and September 30, 2023,
have been included in our Quarterly Reports on Form 10-Q filed with the SEC on August 14, 2023 and November 9, 2023, respectively, and
should be read together with this summary. See the sections entitled Information Incorporated by Reference and Where to Find Additional
Information and Incorporation.
Our historical results are not indicative
of the results that may be expected in the future, and results of interim periods are not indicative of the results for the entire year.
As Reported
| |
Years Ended December 31, | |
(in thousands, except share
and per share amounts) | |
2022 | | |
2021 | |
Net loss | |
$ | (9,296,948 | ) | |
$ | (3,488,298 | ) |
Net loss per share - basic and diluted | |
$ | (0.46 | ) | |
$ | (0.41 | ) |
Weighted average common shares outstanding, basic and
diluted | |
| 20,163,915 | | |
| 8,522,422 | |
Common shares outstanding at year end | |
| 20,215,288 | | |
| 20,112,244 | |
| |
Three Months Ended March 31, | |
| |
2023 | | |
2022 | |
| |
(Unaudited) | |
Net loss | |
$ | (2,539,843 | ) | |
$ | (2,013,403 | ) |
Net loss per share - basic and diluted | |
$ | (0.12 | ) | |
$ | (0.10 | ) |
Weighted average common shares outstanding, basic and
diluted | |
| 20,375,092 | | |
| 20,142,300 | |
Common shares outstanding at period end | |
| 20,459,057 | | |
| 20,215,288 | |
As Adjusted For The Reverse Stock Split
| |
Years Ended December 31, | |
(unaudited, in thousands, except
share and per share amounts): | |
2022 | | |
2021 | |
| |
(Unaudited) | |
Net loss | |
$ | (9,296,948 | ) | |
$ | (3,488,298 | ) |
Net loss per share - basic and diluted | |
$ | (9.22 | ) | |
$ | (8.19 | ) |
Weighted average common shares outstanding, basic and
diluted | |
| 1,008,196 | | |
| 426,121 | |
Common shares outstanding at year end | |
| 1,010,560 | | |
| 1,005,612 | |
| |
Three Months Ended March 31, | |
| |
2023 | | |
2022 | |
| |
(Unaudited) | |
Net loss | |
$ | (2,539,843 | ) | |
$ | (2,013,403 | ) |
Net loss per share - basic and diluted | |
$ | (2.49 | ) | |
$ | (2.00 | ) |
Weighted average common shares outstanding, basic and
diluted | |
| 1,018,755 | | |
| 1,007,115 | |
Common shares outstanding at period end | |
| 1,022,748 | | |
| 1,007,562 | |
USE OF PROCEEDS
We estimate that the net proceeds from this
offering, after deducting placement agent’s fees and estimated offering expenses payable by us, will be approximately $5.1 million
(based on an assumed public offering price of $2.9601 per share and accompanying warrant, which was the last reported sales price
of our common stock on Nasdaq on December 20, 2023. We intend to use the net proceeds from the offering to fund matters related to obtaining
FDA approval (including clinical studies related thereto), as well as for other research and development activities, and for general
working capital needs. We may also use a portion of the net proceeds to acquire or invest in complementary businesses, products and technologies
or to fund the development of any such complementary businesses, products or technologies. We currently have no plans for any such acquisitions
or investments.
However, because this is a best efforts offering and
there is no minimum offering amount required as a condition to the closing of this offering, the actual offering amount, the placement
agent’s fees and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth
on the cover page of this prospectus, and we may not sell any or all of the securities we are offering. As a result, we may receive significantly
less in net proceeds.
This expected use of net proceeds from this offering
represents our intentions based upon our current plans and business conditions, which could change in the future as our plans and business
conditions evolve. We cannot currently allocate specific percentages of the net proceeds to us from this offering that we may use for
the purposes specified above. Our management will have broad discretion in the application of the net proceeds from this offering and
could use them for purposes other than those contemplated at the time of this offering. Our stockholders may not agree with the manner
in which our management chooses to allocate and spend the net proceeds. Moreover, our management may use the net proceeds for corporate
purposes that may not result in our being profitable or that increases our market value.
Pending our
use of the net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including
short-term, investment-grade, interest-bearing instruments and U.S. government securities.
DIVIDEND POLICY
We have never declared or paid any cash dividends on
our capital stock. We currently intend to retain earnings, if any, to finance the growth and development of our business. We do not expect
to pay any cash dividends on our common stock in the foreseeable future. Payment of future dividends, if any, will be at the discretion
of our Board of Directors and will depend on our financial condition, results of operations, capital requirements, restrictions contained
in any financing instruments, provisions of applicable law and other factors our Board of Directors deems relevant. On June 7, 2021, our
Board of Directors declared a stock dividend of 2.15 shares of common stock for every share of common stock. This stock dividend was deemed
a large stock dividend and was treated as a 1-for-3.15 stock split.
DESCRIPTION OF CAPITAL STOCK
The summary of general terms and provisions of
our capital stock set forth below does not purport to be complete and is subject to and qualified by reference to the Company’s
Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Amended and Restated Bylaws (the
“Bylaws,” and together with the Certificate of Incorporation, the “Charter Documents”), each of which is included
as an exhibit to the Company’s most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission and incorporated
by reference herein. For additional information, please read the Charter Documents and the applicable provisions of the Delaware General
Corporation Law (the “DGCL”).
Authorized Capital Stock
We are authorized to issue up to 12,500,000
shares, of which (i) 7,500,000 have been designated common stock, par value $0.0001 per share, and (ii) 5,000,000 have been designated
preferred stock, par value $0.0001 per share. As of December 20, 2023, there were 1,239,140 shares of our common stock outstanding, held
by 15 stockholders of record. This figure does not reflect the number of beneficial owners of shares of our common stock as a single
stockholder of record often holds shares in nominee name (also referred to as, in “street name”) on behalf of multiple beneficial
owners.
Common Stock
Voting
Each holder of common stock is entitled to one vote
for each share of common stock held on all matters submitted to a vote of stockholders. Any action at a meeting at which a quorum is present
will be decided by a majority of the voting power present in person or represented by proxy, except in the case of any election of directors,
which will be decided by a plurality of votes cast. There is no cumulative voting.
Dividends
Holders of our common stock are entitled to receive
dividends when, as and if declared by our Board of Directors out of funds legally available for payment, subject to the rights of holders,
if any, of any class of stock having preference over the common stock. Any decision to pay dividends on our common stock will be at the
discretion of our Board of Directors. Our Board of Directors may or may not determine to declare dividends in the future. See “Dividend
Policy.” The board’s determination to issue dividends will depend upon our profitability and financial condition, any contractual
restrictions, restrictions imposed by applicable law and the SEC, and other factors that our Board of Directors deems relevant.
Liquidation Rights
In the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of our common stock will be entitled to share ratably on the basis of the number
of shares held in any of the assets available for distribution after we have paid in full, or provided for payment of, all of our debts
and after the holders of all outstanding series of any class of stock have preference over the common stock, if any, have received their
liquidation preferences in full.
Other
Our issued and outstanding shares of common stock
are fully paid and nonassessable. Holders of shares of our common stock are not entitled to preemptive rights. Shares of our common stock
are not convertible into shares of any other class of capital stock, nor are they subject to any redemption or sinking fund provisions.
Preferred Stock
We are authorized to issue up to 5,000,000 shares
of preferred stock. Our amended and restated certificate of incorporation authorizes the board to issue these shares in one or more series,
to determine the designations and the powers, preferences and relative, participating, optional or other special rights and the qualifications,
limitations and restrictions thereof, including the dividend rights, conversion or exchange rights, voting rights (including the number
of votes per share), redemption rights and terms, liquidation preferences, sinking fund provisions and the number of shares constituting
the series. Our Board of Directors could, without stockholder approval, issue preferred stock with voting and other rights that could
adversely affect the voting power and other rights of the holders of common stock and which could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority of our outstanding voting stock.
We have no shares of preferred stock outstanding.
Outstanding Warrants to Acquire
Common Stock
As of December 20,
2023, we had outstanding:
| ● | 216,000
shares of common stock issuable upon the exercise of the August 2023 Warrants at an exercise
price of $7.24 per share; |
| ● | 15,120
shares of common stock issuable upon the exercise of the August 2023 Placement Agent Warrants
at an exercise price of $9.2063 per share; |
| ● | 40,594
shares of common stock issuable upon the exercise of additional Common Stock warrants at
a weighted average exercise price of $64.73 per share; |
|
● |
124,200 shares of common stock issuable upon the exercise of Class A warrants at an exercise price of $140.00; and |
|
● |
3,770 shares of common stock issuable upon the exercise of Class B warrants at an exercise price of $200.00. |
Outstanding Stock Options to Purchase our Common Stock
As of December 20, 2023, options to purchase
an aggregate of 31,361 shares of our common stock, at a weighted average exercise price of $36.28 per share, were outstanding.
Unvested Restricted Stock Units
As of December 20, 2023, 7,875 unvested restricted stock units
were outstanding.
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation,
Our Bylaws and Delaware Law
Some provisions of Delaware law, our amended and restated
certificate of incorporation and our amended and restated bylaws contain provisions that could make hostile takeovers, including the following
transactions, more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise;
or the removal of our incumbent officers and directors. As a consequence, they may also inhibit temporary fluctuations in the market price
of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing
changes in the composition of our board and management. It is possible that these provisions could make it more difficult to accomplish
or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including
transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended to
discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to
acquire control of us to first negotiate with our Board of Directors. We believe that the benefits of the increased protection of our
potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages
of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General
Corporation Law, which prohibits persons deemed to be “interested stockholders” from engaging in a “business combination”
with a publicly held Delaware corporation for three years following the date these persons become interested stockholders unless the business
combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another
prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates,
owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s
voting stock. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in
a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect
to transactions not approved in advance by the Board of Directors. A Delaware corporation may “opt out” of these provisions
with an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation or
bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have not
opted out of these provisions. As a result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
Undesignated Preferred Stock
The ability of our Board of Directors, without action
by the stockholders, to issue undesignated shares of preferred stock with voting or other rights or preferences as designated by our Board
of Directors could impede the success of any attempt to change control of us. These and other provisions may have the effect of deferring
hostile takeovers or delaying changes in control or management of our company.
Authorized Common Stock
Our authorized but unissued shares of common stock
will be available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital and corporate acquisitions. The existence of authorized but unissued
shares of common stock could render more difficult or discourage an attempt to obtain control of a majority of our common stock by means
of a proxy contest, tender offer, merger or otherwise.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our amended and restated bylaws will provide advance
notice procedures for stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for
election as directors at any meeting of stockholders. Our amended and restated bylaws also will specify certain requirements regarding
the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our
annual meeting of stockholders or from making nominations for directors at our meetings of stockholders.
No Cumulative Voting; No Action Without a Meeting; Special Meeting of
Stockholders
Stockholders will not be permitted to cumulate their
votes for the election of directors. In addition, stockholders will not be able to take action by written consent and will only be able
to take action at annual or special meetings of our stockholders. Furthermore, special meetings of our stockholders may be called only
by our Chief Executive Officer, our President or our Board of Directors.
Exclusive Forum Selection
Our amended and restated certificate of incorporation
will require, to the fullest extent permitted by law, subject to limited exceptions, that derivative actions brought in our name, actions
against directors, officers and employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery
in the State of Delaware and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service
of process on such stockholder’s counsel in any action brought to enforce the exclusive forum provision. Any person or entity purchasing
or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and consented to the forum provisions
in our amended and restated certificate of incorporation.
Notwithstanding the foregoing, Section 27 of the Exchange
Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the
rules and regulations thereunder. In addition, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state
courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
As a result, the exclusive forum provision will provide that the Court of Chancery and the federal district court for the District of
Delaware will have concurrent jurisdiction over any action arising under the Securities Act or the rules and regulations thereunder, and
the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or the rules
and regulations thereunder or any other claim for which the federal courts have exclusive jurisdiction. To the extent the exclusive forum
provision restricts the courts in which our stockholders may bring claims arising under the Securities Act and the rules and regulations
thereunder, there is uncertainty as to whether a court would enforce such provision. Investors cannot waive compliance with the federal
securities laws and the rules and regulations promulgated thereunder.
Although we believe this provision benefits our company
by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, a court may determine
that this provision is unenforceable, and to the extent it is enforceable, the provision may have the effect of discouraging lawsuits
against our directors and officers and increasing the cost to stockholders of bringing such lawsuits.
Listing
The common stock is listed on Nasdaq under the symbol
“BJDX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental
Stock Transfer & Trust Company, 1 State Street, 30th Floor, New York, New York 10004.
DESCRIPTION OF SECURITIES WE ARE OFFERING
The following is a summary of
the material terms of our common stock. For additional information about our authorized capital, including our common stock and our outstanding
warrants to purchase common stock, we refer you to our amended and restated certificate of incorporation and amended and restated bylaws
that are currently in effect, which are included herein as Exhibit 3.1, and Exhibit 3.3, respectively, and our filings with the SEC that
are incorporated by reference in this prospectus, including our Annual Report on Form 10-K for the year ended December 31, 2022. For instructions
on how to find copies of these documents, please read “Where You Can Find Additional Information” and “Information Incorporated
by Reference.”
Common Stock
The material terms and provisions of our common stock
and each other class of our securities which qualifies or limits our common stock are described under the caption “Description of
Capital Stock” in this prospectus.
Common Warrants
The following summary of certain terms and provisions
of the Common Warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions
of the Common Warrant, the form of which will be filed as an exhibit to the registration statement of which this prospectus forms a part.
Prospective investors should carefully review the terms and provisions of the form of Common Warrant for a complete description of the
terms and conditions of the Common Warrants.
Duration, Exercise Price and Form
Each Common Warrant offered hereby will have an exercise
price equal to $ per share. The Common Warrants will be immediately exercisable and may be exercised until the year anniversary
of the original issuance date. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate
adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock and the exercise
price. The Common Warrants will be issued separately from the common stock or the Prefunded Warrants, as the case may be, and may be transferred
separately immediately thereafter. The Common Warrants will be issued in certificated form only.
Exercisability
The Common Warrants will be exercisable, at the option
of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number
of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder (together
with its affiliates) may not exercise any portion of such holder’s warrants to the extent that the holder would own more than 4.99%
of the outstanding common stock (or at the election of a holder prior to the date of issuance, 9.99%) immediately after exercise, except
that upon at least 61 days’ prior notice from the holder to us, the holder may increase the amount of ownership of outstanding stock
after exercising the holder’s warrants up to 9.99% of the number of shares of our common stock outstanding immediately after giving
effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Common Warrants.
Cashless Exercise
If at the time of exercise there is no effective registration
statement registering, or the prospectus contained therein is not available for the issuance of the underlying shares to the holder, in
lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price,
the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined
according to a formula set forth in the Common Warrant.
Fundamental Transactions
In the event of a fundamental transaction, as described in the Common Warrants
and generally including any reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition
of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more
than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented
by our outstanding common stock, the holders of the Common Warrants will be entitled to receive upon exercise of the Common Warrants the
kind and amount of securities, cash or other property that the holders would have received had they exercised the Common Warrants immediately
prior to such fundamental transaction. In addition, in certain circumstances, upon a fundamental transaction, the holder of a Common Warrant
will have the right to require us to repurchase its Common Warrants at the Black-Scholes value; provided, however, that, if the fundamental
transaction is not within our control, including not approved by our Board, then the holder will only be entitled to receive the same
type or form of consideration (and in the same proportion), at the Black-Scholes value of the unexercised portion of the Common Warrant
that is being offered and paid to the holders of our common stock in connection with the fundamental transaction.
Transferability
Subject to applicable laws, a Common Warrant may be
transferred at the option of the holder upon surrender of the Common Warrant to us together with the appropriate instruments of transfer.
Fractional Shares
No fractional shares of common stock will be issued
upon the exercise of the Common Warrants. Rather, the number of shares of common stock to be issued will, at our election, either be rounded
up to the nearest whole number or we will pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the exercise price.
Trading Market
There is no established trading market for the Common
Warrants, and we do not expect a market to develop. We do not intend to apply for a listing of the Common Warrants on any securities exchange
or other nationally recognized trading system. Without an active trading market, the liquidity of the Common Warrants will be limited.
The common stock issuable upon exercise of the Common Warrants is currently listed on Nasdaq.
Rights as a Stockholder
Except as otherwise provided in the Common Warrants
or by virtue of the holders’ ownership of shares of common stock, the holders of the Common Warrants do not have the rights or privileges
of holders of our shares of common stock, including any voting rights, until such Common Warrant holders exercise their Common Warrants.
Waivers and Amendments
No term of the Common Warrants may be amended or waived
without the written consent of the majority of the holders of the Common Warrants purchased in this offering.
Prefunded Warrants
The following summary of certain terms and provisions
of the Prefunded Warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions
of the Prefunded Warrant, the form of which will be filed as an exhibit to the registration statement of which this prospectus forms a
part. Prospective investors should carefully review the terms and provisions of the form of Prefunded Warrant for a complete description
of the terms and conditions of the Prefunded Warrants.
Duration, Exercise Price and Form
The Prefunded Warrants offered hereby will have an exercise price of $0.0001
per share. The Prefunded Warrants will be immediately exercisable and may be exercised at any time after their original issuance until
such Prefunded Warrants are exercised in full. The exercise price and number of shares of common stock issuable upon exercise are subject
to appropriate adjustment in the event of share dividends, share splits, reorganizations or similar events affecting our shares of common
stock. The Prefunded Warrants and Common Warrants are immediately separable and will be issued separately in this offering, but must be
purchased together in this offering. The Prefunded Warrants will be issued in certificated form only.
Exercisability
The Prefunded Warrants will be exercisable, at the
option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the
number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder
(together with its affiliates) may not exercise any portion of the Prefunded Warrant to the extent that the holder would own more than
4.99% (or at the election of a holder prior to the date of issuance, 9.99%) of the outstanding common stock immediately after exercise;
provided, however, that upon 61 days’ notice to us, the holder may increase or decrease such beneficial ownership limitation, provided
that in no event shall the beneficial ownership limitation exceed 9.99% and any increase in the beneficial ownership limitation will not
be effective until 61 days following notice of such increase from the holder to us.
Cashless Exercise
At the time a holder exercises its Prefunded Warrants,
in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price,
the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined
according to a formula set forth in the Prefunded Warrant.
Fundamental Transactions
In the event of a fundamental transaction, as described
in the Prefunded Warrants and generally including any reorganization, recapitalization or reclassification of our common stock, the sale,
transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another
person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50%
of the voting power represented by our outstanding common stock, the holders of the Prefunded Warrants will be entitled to receive upon
exercise of the Prefunded Warrants the kind and amount of securities, cash or other property that the holders would have received had
they exercised the Prefunded Warrants immediately prior to such fundamental transaction.
Transferability
Subject to applicable laws, a Prefunded Warrant may
be transferred at the option of the holder upon surrender of the Prefunded Warrant to us together with the appropriate instruments of
transfer.
Fractional Shares
No fractional shares of common stock will be issued
upon the exercise of the Prefunded Warrants. Rather, the number of shares of common stock to be issued will, at our election, either be
rounded up to the nearest whole number or we will pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the exercise price.
Trading Market
There is no established trading market for the Prefunded
Warrants, and we do not expect a market to develop. We do not intend to apply for a listing of the Prefunded Warrants on any securities
exchange or other nationally recognized trading system. Without an active trading market, the liquidity of the Prefunded Warrants will
be limited. The common stock issuable upon exercise of the Prefunded Warrants is currently listed on Nasdaq.
Rights as a Stockholder
Except as otherwise provided in the Prefunded Warrants
or by virtue of the holders’ ownership of shares of common stock, the holders of Prefunded Warrants do not have the rights or privileges
of holders of our shares of common stock, including any voting rights, until such Prefunded Warrant holders exercise their warrants.
Waivers and Amendments
No term of the Prefunded Warrants may be amended or
waived without the written consent of the majority of the holders of the Prefunded Warrants purchased in this offering.
Placement Agent Warrants
We have also agreed to issue to the
placement agent or its designees, placement agent warrants as compensation in connection with this offering to purchase up to
141,887 shares of common stock as compensation in connection with this offering. The placement agent warrants will be exercisable
immediately and will have substantially the same terms as the Common Warrants described above, except that the placement agent
warrants will have an exercise price of $ per share (representing 125% of the offering price per share and accompanying Common
Warrant) and a termination date that will be five years from the commencement of the sales pursuant to this offering. See
“Plan of Distribution” below.
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation,
Our Bylaws and Delaware Law
Some provisions of Delaware law, our amended and restated
certificate of incorporation and our amended and restated bylaws contain provisions that could make hostile takeovers, including the following
transactions, more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise;
or the removal of our incumbent officers and directors. As a consequence, they may also inhibit temporary fluctuations in the market price
of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing
changes in the composition of our board and management. It is possible that these provisions could make it more difficult to accomplish
or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including
transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended to
discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to
acquire control of us to first negotiate with our Board of Directors. We believe that the benefits of the increased protection of our
potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages
of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General
Corporation Law, which prohibits persons deemed to be “interested stockholders” from engaging in a “business combination”
with a publicly held Delaware corporation for three years following the date these persons become interested stockholders unless the business
combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another
prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates,
owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s
voting stock. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in
a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions
not approved in advance by the Board of Directors. A Delaware corporation may “opt out” of these provisions with an express
provision in its original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting
from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these
provisions. As a result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
Undesignated Preferred Stock
The ability of our Board of Directors, without action
by the stockholders, to issue undesignated shares of preferred stock with voting or other rights or preferences as designated by our Board
of Directors could impede the success of any attempt to change control of us. These and other provisions may have the effect of deferring
hostile takeovers or delaying changes in control or management of our company.
Authorized Common Stock
Our authorized but unissued shares of common stock
will be available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital and corporate acquisitions. The existence of authorized but unissued
shares of common stock could render more difficult or discourage an attempt to obtain control of a majority of our common stock by means
of a proxy contest, tender offer, merger or otherwise.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our amended and restated bylaws will provide advance
notice procedures for stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for
election as directors at any meeting of stockholders. Our amended and restated bylaws also will specify certain requirements regarding
the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our
annual meeting of stockholders or from making nominations for directors at our meetings of stockholders.
No
Cumulative Voting; No Action Without a Meeting; Special Meeting of Stockholders
Stockholders
will not be permitted to cumulate their votes for the election of directors. In addition, stockholders will not be able to take action
by written consent and will only be able to take action at annual or special meetings of our stockholders. Furthermore, special meetings
of our stockholders may be called only by our Chief Executive Officer, our President or our Board of Directors.
Exclusive
Forum Selection
Our
amended and restated certificate of incorporation will require, to the fullest extent permitted by law, subject to limited exceptions,
that derivative actions brought in our name, actions against directors, officers and employees for breach of fiduciary duty and other
similar actions may be brought only in the Court of Chancery in the State of Delaware and, if brought outside of Delaware, the stockholder
bringing the suit will be deemed to have consented to service of process on such stockholder’s counsel in any action brought to
enforce the exclusive forum provision. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock
shall be deemed to have notice of and consented to the forum provisions in our amended and restated certificate of incorporation.
Notwithstanding
the foregoing, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability
created by the Exchange Act or the rules and regulations thereunder. In addition, Section 22 of the Securities Act creates
concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities
Act or the rules and regulations thereunder. As a result, the exclusive forum provision will provide that the Court of Chancery
and the federal district court for the District of Delaware will have concurrent jurisdiction over any action arising under the Securities
Act or the rules and regulations thereunder, and the exclusive forum provision will not apply to suits brought to enforce any duty
or liability created by the Exchange Act or the rules and regulations thereunder or any other claim for which the federal courts
have exclusive jurisdiction. To the extent the exclusive forum provision restricts the courts in which our stockholders may bring claims
arising under the Securities Act and the rules and regulations thereunder, there is uncertainty as to whether a court would enforce
such provision. Investors cannot waive compliance with the federal securities laws and the rules and regulations promulgated thereunder.
Although
we believe this provision benefits our company by providing increased consistency in the application of Delaware law in the types of
lawsuits to which it applies, a court may determine that this provision is unenforceable, and to the extent it is enforceable, the provision
may have the effect of discouraging lawsuits against our directors and officers and increasing the cost to stockholders of bringing such
lawsuits.
PLAN
OF DISTRIBUTION
Pursuant
to an engagement agreement, dated August 7, 2023 (as amended, the “Engagement Agreement”), we have engaged H.C. Wainwright
& Co., LLC to act as our exclusive placement agent to solicit offers to purchase the securities offered pursuant to this prospectus
on a reasonable best efforts basis. The Engagement Agreement does not give rise to any commitment by the placement agent to purchase
any of our securities, and the placement agent will have no authority to bind us by virtue of the Engagement Agreement. The placement
agent is not purchasing or selling any of the securities offered by us under this prospectus, nor is it required to arrange for the purchase
or sale of any specific number or dollar amount of securities. This is a best efforts offering and there is no minimum offering amount
required as a condition to the closing of this offering. The placement agent has agreed to use reasonable best efforts to arrange for
the sale of the securities by us. Therefore, we may not sell all of the shares of common stock, Prefunded Warrants and Common Warrants
being offered. The terms of this offering are subject to market conditions and negotiations between us, the placement agent and prospective
investors. The placement agent does not guarantee that it will be able to raise new capital in any prospective offering. The placement
agent may engage sub-agents or selected dealers to assist with the offering.
Investors
purchasing securities offered hereby will have the option to execute a securities purchase agreement with us. In addition to rights and
remedies available to all purchasers in this offering under federal securities and state law, the purchasers which enter into a securities
purchase agreement will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract
is material to larger purchasers in this offering as a means to enforce the following covenants uniquely available to them under the
securities purchase agreement: (i) a covenant to not enter into variable rate financings for a period of one year following the closing
of the offering, subject to an exception; and (ii) a covenant to not enter into any equity financings for 60 days from closing of the
offering, subject to certain exceptions. The nature of the representations, warranties and covenants in the securities purchase agreements
shall include:
| ● | standard
issuer representations and warranties on matters such as organization, qualification, authorization,
no conflict, no governmental filings required, current in SEC filings, no litigation, labor
or other compliance issues, environmental, intellectual property and title matters and compliance
with various laws such as the Foreign Corrupt Practices Act; and |
| ● | covenants
regarding matters such as registration of warrant shares, no integration with other offerings,
filing of an 8-K to disclose entering into these securities purchase agreements, no stockholder
rights plans, no material nonpublic information, use of proceeds, indemnification of purchasers,
reservation and listing of shares of common stock, and no subsequent equity sales for 60 days. |
We
expect to deliver the securities being offered pursuant to this prospectus on or about ,
2023. There is no minimum number of securities or amount of proceeds that is a condition to closing of this offering.
Fees
and Expenses
We
have agreed to pay the placement agent a total cash fee equal to 7.0% of the aggregate gross proceeds raised in the offering and a management
fee equal to 1.0% of the gross proceeds raised in this offering. We will also pay the placement agent a non-accountable expense allowance
of $50,000, its legal fees and expenses in an amount up to $100,000 and its clearing fees in an amount up to $15,950 in connection with
this offering. We estimate the total offering expenses of this offering that will be payable by us, excluding the placement agent fees
and expenses, will be approximately $220,000.
Placement
Agent Warrants
In
addition, we have agreed to issue to the placement agent or its designees the placement agent warrants as compensation in connection
with this offering, to purchase up to 7.0% of the aggregate number of shares of common stock sold in this offering (including shares
underlying any Prefunded Warrants), at an exercise price equal to 125% of the public offering price per share and accompanying Common
Warrant to be sold in this offering. The placement agent warrants will be exercisable upon issuance and will expire five years
from the commencement of sales under this offering.
If
at the time of exercise there is no effective registration statement registering, or the prospectus contained therein is not available
for the resale of warrant shares by the holders of the placement agent warrants, then the placement agent warrants may be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the holders shall be entitled to receive a number
of warrant shares as calculated in the placement agent warrants.
The
placement agent warrants provide for customary anti-dilution provisions (for share dividends, splits and recapitalizations and the like)
consistent with FINRA Rule 5110.
Tail
In
the event that any investors that were contacted by the placement agent or were introduced to the Company by the placement agent during
the term of our engagement agreement with the placement agent provide any capital to us in a public or private offering or capital-raising
transaction within 12 months following the termination or expiration of our engagement agreement with the placement agent, we shall pay
the placement agent the cash and warrant compensation provided above on the gross proceeds from such investors. The placement agent will
only be entitled to such fee to the extent that the parties are directly introduced to us by the placement agent, in accordance with
FINRA Rule 2010.
Right
of First Refusal
If,
from the date of the Engagement Agreement until the 12-month anniversary following consummation of each offering of our securities during
the term of the Engagement Agreement, we or any of our subsidiaries decides to raise funds by means of a public offering (excluding an
at-the-market facility) or a private placement or any other capital-raising financing of equity, equity-linked or debt securities, the
placement agent (or any affiliate designated by the placement agent) shall have the right to act as sole book-running manager, sole underwriter
or sole placement agent for such financing. If the placement agent or one of its affiliates decides to accept any such engagement, the
agreement governing such engagement will contain, among other things, provisions for customary fees for transactions of similar size
and nature and the provisions of the Engagement Agreement, including indemnification, which are appropriate to such a transaction.
Lock-Up
Agreements
Our officers and directors, representing beneficial
ownership of 38% of our outstanding shares of common stock as of December 20, 2023, have agreed with the placement agent to be subject
to a lock-up period of 60 days following the date of the securities purchase agreement. This means that, during the applicable lock-up
period, such persons may not offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge,
hypothecate or otherwise dispose of, directly or indirectly, any shares of our common stock or any securities convertible into, or exercisable
or exchangeable for, shares of our common stock. Certain limited transfers are permitted during the lock-up period if the transferee
agrees to these lock-up restrictions. We have also agreed to similar lock-up restrictions on the issuance and sale of our securities
for 60 days following the closing of this offering, although we will be permitted to issue stock options or stock awards to directors,
officers and employees under our existing plans. The lock-up period is subject to an additional extension to accommodate for our reports
of financial results or material news releases. The placement agent may, in its sole discretion and without notice, waive the terms of
any of these lock-up agreements.
In
addition, subject to certain exceptions, we have agreed to not issue any securities that are subject to a price reset based on the trading
prices of our common stock or upon a specified or contingent event in the future, or enter into any agreement to issue securities at
a future determined price for a period of one year following the closing date of this offering.
Indemnification
We
have agreed to indemnify the placement agent against certain liabilities, including certain liabilities under the Securities Act, or
to contribute to payments that the placement agent may be required to make in respect of those liabilities.
In
addition, we will indemnify the purchasers of securities in this offering against liabilities arising out of or relating to (i) any breach
of any of the representations, warranties, covenants or agreements made by us in the securities purchase agreement or related documents
or (ii) any action instituted against a purchaser by a third party (other than a third party who is affiliated with such purchaser) with
respect to the securities purchase agreement or related documents and the transactions contemplated thereby, subject to certain exceptions
Regulation
M Compliance
The
placement agent may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any fees received
by it and any profit realized on the sale of our securities offered hereby by it while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. The placement agent will be required to comply with the requirements of the Securities
Act and the Exchange Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations
may limit the timing of purchases and sales of our securities by the placement agent. Under these rules and regulations, the placement
agent may not (i) engage in any stabilization activity in connection with our securities; and (ii) bid for or purchase any of our securities
or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until they have completed
their participation in the distribution.
Other
Relationships
The
placement agent and its affiliates have engaged, and may in the future engage, in investment banking transactions and other commercial
dealings in the ordinary course of business with us or our affiliates. The placement agent has received, or may in the future receive,
customary fees and commissions for these transactions.
In
addition, in the ordinary course of their business activities, the placement agent and its affiliates may make or hold a broad array
of investments and actively trade debt and equity securities (or related derivative securities) for their own account and for the accounts
of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. The
placement agent and its affiliates may also make investment recommendations and/or publish or express independent research views in respect
of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such
securities and instruments.
The
placement agent acted as the placement agent in connection with several registered offerings in the past three years and it received
compensation for each such offering. However, except as disclosed in this prospectus, we have no present arrangements with the placement
agent for any further services.
Electronic
Distribution
A
prospectus in electronic format may be made available on a website maintained by the placement agent and the placement agent may distribute
prospectuses electronically. Other than the prospectus in electronic format, the information on these websites is not part of this prospectus
or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the placement agent
and should not be relied upon by investors.
Transfer
Agent
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company.
Nasdaq
listing
Our
shares of common stock are listed on Nasdaq under the symbol “BJDX.”
LEGAL
MATTERS
The
validity of the securities offered hereby is being passed upon for us by Hogan Lovells US LLP. Haynes and Boone, LLP, New York, New York
is acting as counsel for the placement agent in connection with this offering.
EXPERTS
Wolf &
Company P.C., independent registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10-K, as amended, for the year ended December 31, 2022, as set forth in their report (which contains an explanatory paragraph
describing conditions that raise substantial doubt about our ability to continue as a going concern as described in Note 1 to the consolidated
financial statements), which is incorporated by reference in this prospectus supplement and elsewhere in the registration statement.
Our financial statements are incorporated by reference in reliance on Wolf & Company P.C.’s report, given on their authority
as experts in accounting and auditing.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The SEC file number for the documents incorporated
by reference in this prospectus is 001-41031. The documents incorporated by reference into this prospectus contain important information
that you should read about us. All documents incorporated by reference into this prospectus that were filed prior to July 24, 2023, do
not give effect to the Reverse Stock Split.
The
following documents are incorporated by reference into this document:
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on March
20, 2023, as amended by Amendment No. 1 thereto, filed on May
1, 2023; |
| ● | our
Quarterly Report on Form
10-Q for the fiscal quarter ended March 31, 2023, filed on May 11, 2023, our Quarterly
Report on Form
10-Q for the fiscal quarter ended June 30, 2023, filed on August 14, 2023, and our Quarterly
Report on Form
10-Q for the fiscal quarter ended September 30, 2023, filed on November 9, 2023; |
| ● | those
portions of our Definitive Proxy Statement on Schedule
14A filed on May 18, 2023 that are deemed “filed” with the SEC; |
| ● | our
Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item
7.01 of Form 8-K and exhibits accompanying such reports that relate to such items) filed
with the SEC on January
27, 2023, April
27, 2023, May
19, 2023, June
20, 2023, July
21, 2023, August
10, 2023, August
28, 2023, October
2, 2023, October
16, 2023 and October
26, 2023; and |
| ● | The
description of our common stock, par value $0.0001 per share contained in its Registration
Statement on Form
8-A, dated and filed with the SEC on November 5, 2021, as amended by the description
of our common stock contained in Exhibit
4.6 to our Annual Report on Form
10-K for the year ended December 31, 2022, including all amendments and reports updating
that description. |
We
also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement of which this prospectus is a part and prior
to the effectiveness of such registration statement and all documents that are filed by us with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the termination of the offering. These documents include
periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
Any
statement contained herein or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed
to be modified or superseded for purposes of the document to the extent that a statement contained in this prospectus or any other subsequently
filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral
request, a copy of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus,
other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus
incorporates. You should direct oral or written requests by one of the following methods. Attention: Investor Relations, Bluejay Diagnostics,
Inc., 360 Massachusetts Avenue, Suite 203, Acton, MA, 01720, (844) 327-7078. You may also access these documents, free of charge on the
SEC’s website at www.sec.gov or on the “Investors” page of our website at www.bluejaydx.com. The information found
on our website, or that may be accessed by links on our website, is not part of this prospectus. We have included our website address
solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our common
stock.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We filed with the SEC a registration statement under the Securities Act for the securities offered by this prospectus. This prospectus
does not contain all of the information in the registration statement and the exhibits and schedule that were filed with the registration
statement. For further information with respect to us and our securities, we refer you to the registration statement and the exhibits
and schedule that were filed with the registration statement. Statements contained in this prospectus about the contents of any contract
or any other document that is filed as an exhibit to the registration statement are not necessarily complete, and we refer you to the
full text of the contract or other document filed as an exhibit to the registration statement. The SEC maintains an Internet website
at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding registrants that file
electronically with the SEC.
We
file periodic reports and current reports under the Exchange Act, including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K, and other information with the Securities and Exchange Commission. These periodic reports and other
information are available for inspection and copying at the SEC regional offices, public reference facilities and on the website of the
SEC referred to above.
We
make available free of charge on or through our internet website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The information
found on our website, www.bluejaydx.com, other than as specifically incorporated by reference in this prospectus, is not part of this
prospectus.
BLUEJAY
DIAGNOSTICS, INC.
Up to 2,026,958 Shares
of Common Stock
Prefunded Warrants to purchase up to 2,026,958
Shares of Common Stock
Common Warrants to purchase up to 2,026,958
Shares of Common Stock
2,026,958 Shares of Common Stock underlying
Prefunded Warrants and Common Warrants
Placement Agent Warrants to Purchase up
to 141,887 Shares of Common Stock
141,887 Shares of
Common Stock Underlying the Placement Agent Warrants
Preliminary
Prospectus
,
2023
H.C.
Wainwright & Co.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 13.
Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable by the registrant expected to be incurred in connection with the
sale and distribution of the securities being registered hereby (other than placement agent fees). All of such costs and expenses are
estimates, except for the SEC registration fee and the Financial Industry Regulatory Authority (“FINRA”) filing fee.
|
|
Amount |
|
SEC registration fee |
|
$ |
1,848.69 |
|
FINRA filing fee |
|
$ |
2,378.75 |
|
Accountant’s fees and expenses |
|
$ |
50,000 |
|
Legal fees and expenses |
|
$ |
150,000 |
|
Transfer agent’s fees and expenses |
|
$ |
- |
|
Printing fees and expenses |
|
$ |
- |
|
Miscellaneous |
|
$ |
15,950 |
|
Total expenses |
|
$ |
220,177.44 |
|
Item 14.
Indemnification of Directors and Officers.
Pursuant
to Section 145 of the DGCL, a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than a derivative action by or in the right of such corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity for another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The
DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees) actually
and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to such corporation
unless the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
To
the extent a present or former director or officer is successful in the defense of such an action, suit or proceeding referenced above,
or in defense of any claim, issue or matter therein, a corporation is required by the DGCL to indemnify such person for actual and reasonable
expenses incurred in connection therewith. Expenses (including attorneys’ fees) incurred by such persons in defending any action,
suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding upon in the case of a current officer
or director, receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that such person
is not entitled to be so indemnified.
The
DGCL provides that the indemnification described above shall not be deemed exclusive of other indemnification that may be granted by
a corporation pursuant to its bylaws, disinterested directors’ vote, stockholders’ vote and agreement or otherwise.
Section
102(b)(7) of the DGCL enables a corporation, in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary damages for violations of the directors’ fiduciary
duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing
for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction
from which a director derived an improper personal benefit. The Company’s amended and restated certificate of incorporation provides
for such limitations on liability for its directors.
The
DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of such corporation, or is or was serving at the request of such corporation in a similar capacity for another corporation,
partnership, joint venture, trust or other enterprise, against any liability asserted against him or her in any such capacity or arising
out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability
as described above. The Company has obtained liability insurance for its directors and officers. Such insurance would be available to
its directors and officers in accordance with its terms.
The
Company’s amended and restated certificate of incorporation requires the Company to indemnify and hold harmless, to the fullest
extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “covered person”) who
was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was
a director, officer or member of a committee of the Company, or, while a director or officer of the Company, is or was serving at the
request of the Company as a director or officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and
expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by such covered
person in connection with a proceeding.
In
addition, under the Company’s amended and restated certificate of incorporation, in certain circumstances, the Company shall pay
the expenses (including attorneys’ fees) incurred by a covered person in defending a proceeding in advance of the final disposition
of such proceeding; provided, however, that the Company shall not be required to advance any expenses to a person against whom the Company
directly brings an action, suit or proceeding alleging that such person (1) committed an act or omission not in good faith or (2) committed
an act of intentional misconduct or a knowing violation of law. Additionally, an advancement of expenses incurred by a covered person
shall be made only upon delivery to the Company of an undertaking, by or on behalf of such covered person, to repay all amounts so advanced
if it shall ultimately be determined by final judicial decision from which there is no further right to appeal or otherwise in accordance
with Delaware law that such covered person is not entitled to be indemnified for such expenses.
Item 15.
Recent Sales of Unregistered Securities.
During
the past three years, we sold the following shares of common stock, preferred stock, promissory notes and warrants without registration
under the Securities Act:
On
August 28, 2023, we issued unregistered warrants to purchase up to 216,000 shares of common stock (the “Warrants”). Each
Warrant is exercisable for one share of common stock (the “Warrant Shares”) at an exercise price of $7.24 per share, were
immediately exercisable upon issuance, and will expire five years from the date of issuance. In addition, we issued to the placement
agent, or its designees, warrants to purchase up to 15,120 shares of common stock (the “Placement Agent Warrants”). The Placement
Agent Warrants have substantially the same terms as the Warrants, except that the Placement Agent Warrants have an exercise price equal
to $9.2063, and a term of five years from the commencement of the sales pursuant to the Offering.
In
June 2021, we entered into an agreement to issue a total of $4.5 million of 7.5% Senior Secured Convertible Debentures (the “Debentures”),
of which $3.0 million in principal amount of the Debentures were issued at closing and $1.5 million in principal amount of the Debentures
were issued in August 2021. At the time of our initial public offering, the Debentures were converted into our Series D Preferred Stock
at a conversion price of $1,000 per share which were subsequently converted in common stock shares prior to December 31, 2021. These
figures do not give effect to the Reverse Stock Split.
In
December 2020, we issued 636 shares of Series C preferred stock at a purchase price of $1,578.50 per share and received proceeds,
net of issuance costs of approximately $995,000. All shares were converted to common stock in June 2021. All of the foregoing issuances
were made to accredited investors. These figures do not give effect to the Reverse Stock Split.
All
of the securities above were issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act
or Regulation D promulgated thereunder.
Item 16.
Exhibits and Financial Statement Schedules.
(a)
Exhibits
See
the Exhibit Index List below, which is incorporated by reference herein.
10.1+ |
|
2021
Stock Plan |
|
|
|
S-1 |
|
333-260029
Exhibit 10.1 |
|
10/04/2021 |
10.2 |
|
License
and Supply Agreement, dated October 6, 2020, by and between Toray Industries, Inc. and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.2 |
|
10/04/2021 |
10.3+ |
|
Employment
Agreement, dated July 1, 2021, between Neil Dey and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.3 |
|
10/04/2021 |
10.4+ |
|
Employment
Agreement, dated July 1, 2021, between Jason Cook and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.5 |
|
10/04/2021 |
10.5+ |
|
Employment
Agreement, dated March 23, 2022, between Kenneth Fisher and Bluejay Diagnostics, Inc. |
|
|
|
8-K |
|
001-41031
Exhibit 10.1 |
|
03/28/2022 |
10.6+ |
|
Employment
Agreement, dated July 1, 2021, between Kevin Vance and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.6 |
|
10/04/2021 |
10.7+ |
|
Separation
Agreement, dated as of October 6, 2023, between Kenneth Fisher and Bluejay Diagnostics, Inc. |
|
|
|
10-Q |
|
001-41031
Exhibit 10.2 |
|
11/09/2023 |
10.8 |
|
Securities
Purchase Agreement, dated June 7, 2021, between certain purchasers and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.7 |
|
10/04/2021 |
10.9 |
|
Registration
Rights Agreement, dated June 7, 2021, between certain purchasers and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.8 |
|
10/04/2021 |
10.10 |
|
Amendment
to License and Supply Agreement, dated July 21, 2021, by and between Toray Industries, Inc. and Bluejay Diagnostics, Inc. |
|
|
|
S-1 |
|
333-260029
Exhibit 10.9 |
|
10/04/2021 |
10.11+ |
|
First
Amendment to Employment Agreement, dated January 27, 2023, between Neil Dey and Bluejay Diagnostics, Inc. |
|
|
|
8-K |
|
001-41031
Exhibit 10.1 |
|
01/27/2023 |
10.12 |
|
Securities
Purchase Agreement, dated August 24, 2023, between certain purchasers and Bluejay Diagnostics, Inc. |
|
|
|
8-K |
|
001-41031
Exhibit 10.1 |
|
08/28/2023 |
10.13 |
|
Form of Securities Purchase Agreement |
|
X |
|
|
|
|
|
|
10.14 |
|
Amended
and Restated License Agreement, entered into on October 23, 2023, by and between Bluejay Diagnostics. Inc. and Toray Industries,
Inc. |
|
|
|
8-K |
|
001-41031
Exhibit 10.1 |
|
10/26/2023 |
10.15 |
|
Master
Supply Agreement, entered into on October 23, 2023 by and between Bluejay Diagnostics, Inc. and Toray Industries, Inc. |
|
|
|
8-K |
|
001-41031
Exhibit 10.2 |
|
10/26/2023 |
21.1 |
|
List
of Subsidiaries |
|
|
|
S-1 |
|
333-260029
Exhibit 21.1 |
|
10/04/2021 |
23.1 |
|
Consent of Wolf & Company, P.C. |
|
X |
|
|
|
|
|
|
23.2 |
|
Consent of Hogan Lovells US LLP (included in Exhibit 5.1) |
|
X |
|
|
|
|
|
|
24.1† |
|
Power
of Attorney |
|
|
|
|
|
|
|
|
107† |
|
Filing
Fee Table |
|
|
|
|
|
|
|
|
+ | Management
contract or compensatory plans or arrangements. |
Item 17.
Undertakings.
(a) | The
undersigned registrant hereby undertakes: |
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) | To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To
reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and |
| (iii) | To
include any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such information in the
registration statement; |
provided,
however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the
date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
| (i) | Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424; |
| (ii) | Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned registrant; |
| (iii) | The
portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and |
| (iv) | Any
other communication that is an offer in the offering made by the undersigned registrant to
the purchaser. |
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The
undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, as amended, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act of 1933, as amended, shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, as amended, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Acton, State of Massachusetts, on December 21, 2023.
|
BLUEJAY
DIAGNOSTICS, INC. |
|
|
|
By: |
/s/
Neil Dey |
|
Neil Dey |
|
President and Chief Executive
Officer |
Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to the registration statement has been signed by the following
persons in their capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Neil Dey |
|
President, Chief Executive
Officer and Director |
|
December 21, 2023 |
Neil
Dey |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Frances Scally |
|
Interim Chief Financial
Officer
(Principal Financial Officer and |
|
December 21, 2023 |
Frances
Scally |
|
Principal
Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Chairman of the Board |
|
December 21, 2023 |
Douglas
Wurth |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
December 21, 2023 |
Svetlana Dey |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
December 21, 2023 |
Donald
R. Chase |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
December 21, 2023 |
Fred
S. Zeidman |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
December 21, 2023 |
Gary Gemignani |
|
|
|
|
* By: |
/s/
Neil Dey |
|
|
Neil
Dey
Attorney-in-Fact |
|
II-7
Exhibit 4.7
PREFUNDED COMMON STOCK PURCHASE WARRANT
BLUEJAY
DIAGNOSTICS, INC.
Warrant Shares: _______ |
Issue Date:______, 2023 |
|
|
|
Initial Exercise Date: _______, 2023 |
THIS PREFUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date set forth above (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Bluejay Diagnostics, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-275697) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, as amended from time to time, which registers the
sale of the Warrants and the Warrant Shares, among others, to the purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Trading Market on which the Common Stock is then listed is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State Street,
30th Floor, New York, New York 10004, and an email address of cstmail@continentalstock.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably practicable following the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of
Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001 subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which
the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the Trading Market on which the Common Stock is then listed
as reported by Bloomberg as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise
is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until
two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP
on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise
is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading
Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by book entry credit, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading Day immediately prior to the Initial Exercise Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of
a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of
Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number
of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary), directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the assets of the
Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether
by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their
shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding shares of Common
Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company,
directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or
group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the
voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise
of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result
of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any
different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations
of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with
the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company
herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless of
(i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental
Transaction occurs prior to the Initial Exercise Date.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of
all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders
of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the
Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
g) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
Section 4. Transfer
of Warrant.
a) Transferability.
This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages
to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but
not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts
due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 360 Massachusetts Avenue, Suite 203, Acton, MA 01720, Attention: [ ], email address: [ ], or such other email address
or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries
to be provided by the Company hereunder shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight
courier service addressed to the Holder at the e-mail address or address of the Holder appearing on the books of the Company. Any notice
or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if
such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City
time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at
the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided by the Company hereunder
constitutes, or contains, material, non-public information regarding the Company or any subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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BLUEJAY DIAGNOSTICS, INC. |
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By: |
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Name: |
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Title: |
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NOTICE OF EXERCISE
To: BLUEJAY
DIAGNOSTICS, INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[ ] in lawful money
of the United States; or
[ ] the cancellation
of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant
with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: __________________________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: ____________________________________________________________________
Name of Authorized Signatory: ______________________________________________________________________________________
Title of Authorized Signatory: _______________________________________________________________________________________
Date: __________________________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature:___________________ |
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Holder’s Address:___________________ |
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19
Exhibit 4.8
COMMON
STOCK PURCHASE WARRANT
BLUEJAY
DIAGNOSTICS, INC.
Warrant
Shares: _______ |
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Issue
Date:______, 2023 |
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Initial
Exercise Date: _______, 2023 |
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and on or prior to 5:00 p.m.
(New York City time) on ______________1 (the “Termination Date”) but not thereafter, to subscribe for
and purchase from Bluejay Diagnostics, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject
to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock. The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
| 1 | The
date that is the [ year] anniversary of the Initial Exercise Date, provided that, if such date is not a Trading Day, insert the immediately
following Trading Day. |
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration
Statement” means the effective registration statement on Form S-1 (File No. 333-275697) filed with the Commission, including
all information, documents and exhibits filed with or incorporated by reference into such registration statement, as amended from time
to time, which registers the sale of the Warrants and the Warrant Shares, among others, to the purchasers, and includes any Rule 462(b)
Registration Statement.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the Trading Market on which the Common Stock is then listed is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address
of 1 State Street, 30th Floor, New York, New York 10004, and an email address of cstmail@continentalstock.com, and any successor transfer
agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank
unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original
Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised
in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably practicable following
the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $[___], subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise
is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)
of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the
VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock
on the Trading Market on which the Common Stock is then listed as reported by Bloomberg
as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise
were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by book entry credit,
registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is
the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after
delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period
after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the
Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject
to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing
to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant
Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer
agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary
Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing,
with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading Day immediately prior
to the Initial Exercise Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City
time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided
that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery
Date.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder
may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of
a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since
the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares
of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of
the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise
of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership
Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary),
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of the assets of the Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer
or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to
sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the
outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly
or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme
of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares
of Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary,
in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option,
exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the
date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder
an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date
of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock
are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided,
further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such
holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant
based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of
consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding
to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility
or (3) the 365 day volatility, each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day
annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental
Transaction, (C) the underlying price per share used in such calculation shall be the highest VWAP during the period beginning on the
Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation
of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section
3(d) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer
of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election
and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction
in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the
Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents
with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a
Fundamental Transaction occurs prior to the Initial Exercise Date.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a
Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such
notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
g)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during
the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board
of Directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their
respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the
state and federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions
of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that
the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company
willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the
Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto
or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight
courier service, addressed to the Company, at 360 Massachusetts Avenue, Suite 203, Acton, MA 01720, Attention: [ ], email address: [
], or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices
or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally by e-mail
or sent by a nationally recognized overnight courier service addressed to the Holder at the e-mail address or address of the Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any
notice provided by the Company hereunder constitutes, or contains, material, non-public information regarding the Company or any subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
BLUEJAY DIAGNOSTICS, INC. |
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
| To: | BLUEJAY
DIAGNOSTICS, INC. |
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
| ☐ | in
lawful money of the United States; or |
| ☐ | if permitted the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number
of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c). |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ___________________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _____________________________________________________________
Name
of Authorized Signatory: _______________________________________________________________________________
Title
of Authorized Signatory: ________________________________________________________________________________
Date:
___________________________________________________________________________________________________
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print) |
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Phone
Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature: _________________________________ |
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Holder’s
Address: _________________________________ |
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19
Exhibit 4.9
PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT
BLUEJAY
DIAGNOSTICS, INC.
Warrant Shares: _______ |
Issue Date: ______, 2023 |
|
|
Initial Exercise Date: _______, 2023 |
THIS PLACEMENT AGENT COMMON
STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date set forth above (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on ______________1
(the “Termination Date”) but not thereafter, to subscribe for and purchase from Bluejay Diagnostics, Inc., a Delaware
corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”)
of the Company’s Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b). This Warrant is issued pursuant to that certain Engagement Agreement by and between the Company and
H.C. Wainwright & Co., LLC, dated as of August 7, 2023, as amended on October 11, 2023.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1 | The date that is the five year anniversary of the date of
the commencement of sales. |
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-275697) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, as amended from time to time, which registers the
sale of the Warrants and the Warrant Shares, among others, to the purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Trading Market on which the Common Stock is then listed is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State Street,
30th Floor, New York, New York 10004, and an email address of cstmail@continentalstock.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably practicable following the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of
Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[___]2,
subject to adjustment hereunder (the “Exercise Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) |
= | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the Trading Market on
which the Common Stock is then listed as reported by Bloomberg as of the time of the Holder’s execution of the applicable
Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered
within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day)
pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise
is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day; |
| (B) |
= | the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) |
= | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
2 | Exercise price to be 125% of the offering price. |
d) Mechanics
of Exercise.
| i. | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased
hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s
balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if
the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of
the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and
otherwise by book entry credit, registered in the Company’s share register in the name of the Holder or its designee, for the number
of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1)
Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard
Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share
Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the
Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000
of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10
per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading
Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees
to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As
used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days,
on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the
Trading Day immediately prior to the Initial Exercise Date, the Company agrees to deliver the Warrant Shares subject to such notice(s)
by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date
for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
by such Warrant Share Delivery Date. |
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of
a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held
by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will
not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend (other than
cash) or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of
capital or otherwise (including, without limitation, any distribution of stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the
beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary), directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the assets of the
Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether
by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their
shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding shares of Common
Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company,
directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or
group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the
voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise
of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result
of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any
different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a
Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any
time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public
announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash
equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including
not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor
Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this
Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given
the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further,
that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental
Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black
Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the
applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury
rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction
and the Termination Date, (B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility or
(3) the 365 day volatility, each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization
factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C)
the underlying price per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental
Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining
option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the
Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available
funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not
the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant
and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction
and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced
by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction,
and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this
Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant
and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the
obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company
and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt,
the Holder shall be entitled to the benefits of the provisions of this Section 3(d) regardless of (i) whether the Company has sufficient
authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the
Initial Exercise Date.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of
all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities,
cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders
of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the
Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the
effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to
exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully
and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall
pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 360 Massachusetts Avenue, Suite 203, Acton, MA 01720, Attention: [ ], email address: [ ], or such other email address
or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries
to be provided by the Company hereunder shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight
courier service addressed to the Holder at the e-mail address or address of the Holder appearing on the books of the Company. Any notice
or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if
such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City
time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at
the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading
Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided by the Company hereunder
constitutes, or contains, material, non-public information regarding the Company or any subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
|
BLUEJAY DIAGNOSTICS, INC. |
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By: |
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Name: |
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Title: |
NOTICE OF EXERCISE
To: | BLUEJAY DIAGNOSTICS,
INC. |
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in lawful money
of the United States; or
☐ if permitted the
cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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Phone Number: |
(Please Print)
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature: |
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Holder’s
Address: |
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Exhibit 5.1
|
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com |
December 21, 2023
Board of Directors
Bluejay
Diagnostics, Inc.
360 Massachusetts
Avenue, Suite 203
Acton,
MA 01720
To the addressee referred to above:
We are acting as counsel to
Bluejay Diagnostics, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on
Form S-1 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Act”), relating to the proposed public offering of up to (i) $6,000,000 of (x) shares
of the common stock, par value $0.0001 per share (the “Common Stock”) of the Company (the “Shares”)
and (y) prefunded warrants to purchase shares of Common Stock (the “Prefunded Warrants”), (ii) $6,000,000 of warrants
to purchase shares of Common Stock (the “Common Warrants”), and (iii) $525,000 of placement agent warrants to purchase
shares of Common Stock (the “Placement Agent Warrants” and, together with the Prefunded Warrants and Common Warrants,
the “Warrants”). The Shares and the Warrants are to be sold pursuant to a Securities Purchase Agreement between the
Company and each purchaser signatory thereto (the “Agreement”). This opinion letter is furnished to you at your request
to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection
with the Registration Statement.
For purposes of this opinion letter, we have examined
copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter
expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity
to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied
on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so
relied on. We have also assumed upon the issuance of the shares of Common Stock issuable upon exercise of the Warrants (the “Warrant
Shares”), the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common
Stock that the Company is then authorized to issue under its certificate of incorporation and by the Board of Directors of the Company
(the “Board”) in connection with the offering contemplated by the Registration Statement. This opinion letter is given,
and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of
law solely on the Delaware General Corporation Law, as amended, and as to the opinion expressed in paragraph (b) below, the laws of the
State of New York (but not including any laws, statutes, ordinances, administrative decisions, rules or regulations of any political subdivision
below the state level). We express no opinion herein as to any other statutes, rules or regulations.
Hogan
Lovells US LLP is a limited liability partnership registered in the state of Delaware. “Hogan Lovells” is an international
legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore
Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston
Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Munich New York Northern Virginia Paris
Philadelphia Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices:
Budapest Jakarta Riyadh Shanghai FTZ Ulaanbaatar. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For
more information see www.hoganlovells.com
Based upon, subject to and limited
by the foregoing, we are of the opinion that following (i) execution and delivery by the Company of the Agreement and (ii) effectiveness
of the Registration Statement:
| (a) | upon (1) issuance of the Shares pursuant to the terms of
the Agreement and (2) receipt by the Company of the consideration for the Shares specified in the resolutions of the Board or a duly
authorized committee thereof (the “Committee”), the Shares will be validly issued, fully paid, and nonassessable. |
| (b) | upon (1) execution and delivery by the Company of the Warrants
pursuant to the terms of the Agreement and (2) receipt by the Company of the consideration for the Warrants specified in the resolutions
of the Board or the Committee, the Warrants will constitute valid and binding obligations of the Company. |
| (c) | following (1) execution and delivery by the Company of the
Warrants pursuant to the terms of the Agreement, (2) receipt by the Company of the consideration for the Warrants specified in the resolutions
of the Board or the Committee, and (3) exercise of the Warrants pursuant to their terms, including receipt by the Company of the consideration
for the Warrant Shares specified therein, and issuance of the Warrant Shares thereunder, the Warrant Shares will be validly issued, fully
paid, and nonassessable. |
The opinion expressed in paragraph
(b) above with respect to the valid and binding nature of obligations may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors’ rights (including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and by the exercise of judicial discretion and the application
of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether the Warrants
are considered in a proceeding in equity or at law).
This opinion letter has been
prepared for use in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent
to the effective date of the Registration Statement.
We hereby consent to the filing
of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters”
in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert”
within the meaning of the Act.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Exhibit 10.13
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of [______________], 2023, between Bluejay Diagnostics, Inc., a Delaware corporation
(the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns,
a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below),
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this Agreement.
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 each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Shares and Warrants pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Shares and Warrants, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof, unless otherwise agreed upon between the Company and the Placement Agent.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common
Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with
Section 2.2(a) hereof, which Common Warrants shall be exercisable immediately upon issuance and have a term of exercise equal to [_____
years], in the form of Exhibit A-1 attached hereto.
“Common
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Common Warrants.
“Company
Counsel” means Hogan Lovells US LLP, with offices located at Columbia Square, 555 Thirteenth Street, NW, Washington, DC 20004.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof,
unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, options, restricted stock or restricted stock units to employees,
officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose or as an inducement award pursuant
to Nasdaq Listing Rule 5635(c)(4) (provided that such indument awards are issued as “restricted securities” (as defined in
Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during
the prohibition period in Section 4.11(a) herein), by a majority of the non-employee members of the Board of Directors or a majority of
the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) warrants to
the Placement Agent in connection with the transactions pursuant to this Agreement and any shares of Common Stock upon exercise of such
warrants by the Placement Agent, if applicable, and/or shares of Common Stock upon the exercise or exchange of or conversion of any Securities
issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number
of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection
with stock splits or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic
transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement
in connection therewith during the prohibition period in Section 4.11(a) herein, and provided that any such issuance shall only be to
a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities and (d) Shares and Warrants issued to other purchasers pursuant to the
Prospectus concurrently with the Closing.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” means, collectively, the Lock-Up Agreements, dated as of the date hereof, by and among the Company and the directors
and officers, in the form of Exhibit B attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share
Purchase Price” equals $[_____], subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the Closing Date, provided
that the purchase price per Prefunded Warrant shall be the Per Share Purchase Price minus $0.0001.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement
Agent” means H.C. Wainwright & Co., LLC.
“Prefunded
Warrants” means, collectively, the Prefunded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Prefunded Warrants shall be exercisable immediately and will expire when exercised in full, in the form
of Exhibit A-2 attached hereto.
“Prefunded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Prefunded Warrants.
“Preliminary
Prospectus” means any preliminary prospectus included in the Registration Statement, as originally filed or as part of any amendment
thereto, or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities Act,
including all information, documents and exhibits filed with or incorporated by reference into such preliminary prospectus.
“Pricing
Prospectus” means (i) the Preliminary Prospectus relating to the Securities that was included in the Registration Statement
immediately prior to [___] [a.m./p.m.] (New York City time) on the date hereof and (ii) any free writing prospectus (as defined in the
Securities Act) identified on Schedule A hereto, taken together.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed pursuant to the Registration Statement, including all information, documents and exhibits filed with
or incorporated by reference into such final prospectus.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement on Form S-1 (File No. 333-275697) filed with the Commission, including
all information, documents and exhibits filed with or incorporated by reference into such registration statement, as amended from time
to time, which registers the sale and issuance of the Securities to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b)
Registration Statement” means any registration statement prepared by the Company registering additional Securities, which was
filed with the Commission on or prior to the time at which sales of the Shares and the Warrants were confirmed and became automatically
effective pursuant to Rule 462(b) promulgated by the Commission pursuant to the Securities Act.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement, but excluding the Warrant Shares.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares, Prefunded Warrants (if applicable) and Common
Warrants purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in immediately available funds (excluding for the avoidance of doubt,
if applicable, a Purchaser’s aggregate exercise price of the Prefunded Warrants, which amounts shall be paid as and when such Prefunded
Warrants are exercised for cash).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreements, the Warrants, all exhibits and schedules thereto and hereto and any
other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address
of 1 State Street, 30th Floor, New York, New York 10004 and an email address of cstmail@continentalstock.com, and any successor transfer
agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
“Warrants”
means, collectively, the Common Warrants and the Prefunded Warrants.
“Warrant
Shares” means the Common Warrant Shares and the Prefunded Warrant Shares.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, up to an aggregate of approximately $[_____] of Shares and Common Warrants; provided, however, that,
to the extent that a Purchaser determines, in its sole discretion, that such Purchaser’s Subscription Amount would cause such Purchaser’s
beneficial ownership of the shares of Common Stock (together with beneficial ownership of such Purchaser’s Affiliates, and any Person
acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) to exceed the Beneficial Ownership Limitation,
or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect, by so indicating such election prior
to their issuance, to purchase Prefunded Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being
paid by such Purchaser to the Company. The “Beneficial Ownership Limitation” shall be 4.99% (or, with respect to each Purchaser,
at the election of such Purchaser at Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of the Shares on the Closing Date. In each case, the election to receive Prefunded Warrants is solely at the option
of the Purchaser. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall
be made available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to
each Purchaser its respective Shares and a Common Warrant (and, if applicable, a Prefunded Warrant) as determined pursuant to Section
2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall take place remotely by electronic transfer of the
Closing documentation. Each Purchaser acknowledges that, concurrently with the Closing and pursuant to the Prospectus, the Company may
sell up to $[______] of additional Shares and Warrants to purchasers not party to this Agreement, and will issue to each such purchaser
such additional Shares and Warrants in the same form and at the same Per Share Purchase Price. Unless otherwise directed by the Placement
Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (i.e., on the Closing Date, the Company shall issue
the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the
Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such
Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer
to the Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by
the Company and an applicable Purchaser, through, and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), such Purchaser sells to any Person all, or any portion, of the Shares to be issued hereunder to such Purchaser at
the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without any
additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, and the Company shall
be deemed unconditionally bound to sell, such Pre-Settlement Shares to such Purchaser at the Closing; provided, that the Company shall
not be required to deliver any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the purchase price of such
Pre-Settlement Shares hereunder; and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute
a representation or covenant by such Purchaser as to whether or not during the Pre-Settlement Period such Purchaser shall sell any shares
of Common Stock to any Person and that any such decision to sell any shares of Common Stock by such Purchaser shall solely be made at
the time such Purchaser elects to effect any such sale, if any. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise
(as defined in the Warrants) delivered on or prior to 4:00 p.m. (New York City time) on the Trading Day immediately prior to the Closing
Date, which may be delivered at any time after the time of execution of this Agreement, the Company agrees to deliver the Warrant Shares
subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the Warrant Share Delivery
Date (as defined in the Warrants) for purposes hereunder.
2.2 Deliveries.
(a) On
or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, directed to the Placement Agent and the Purchasers, in form and substance reasonably acceptable to the
Placement Agent and Purchasers;
(iii) the
Company shall have provided each Purchaser through the Placement Agent with the Company’s wire instructions, on Company letterhead
and executed by the Chief Executive Officer or Chief Financial Officer;
(iv) subject
to Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited
basis via The Depository Trust Company Deposit or Withdrawal at Custodian system Shares equal to such Purchaser’s Subscription Amount
divided by the Per Share Purchase Price (minus the number of shares of Common Stock issuable upon exercise of such Purchaser’s Prefunded
Warrants, if applicable, registered in the name of such Purchaser);
(v) a
Common Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to [___]% of the sum
of such Purchaser’s Shares and Prefunded Warrant Shares, with an exercise price equal to $[___], subject to adjustment therein;
(vi) if
applicable, for each Purchaser of Prefunded Warrants pursuant to Section 2.1, a Prefunded Warrant registered in the name of such Purchaser
to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to
such Prefunded Warrants divided by the Per Share Purchase Price minus $0.0001, with an exercise price equal to $0.0001 per share of Common
Stock, subject to adjustment therein;
(vii) on
the date hereof, the duly executed Lock-Up Agreements; and
(viii) the
Preliminary Prospectus and the Prospectus (which will be deemed to be delivered in accordance with Rule 172 under the Securities
Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount (minus, if applicable, a Purchaser’s aggregate exercise price of the Prefunded Warrants, which
amounts shall be paid as and when such Prefunded Warrants are exercised for cash), which shall be made available for “Delivery Versus
Payment” settlement with the Company or its designee.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless such
representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to the
extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless such
representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to the
extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in
the Transaction Documents shall be disregarded.
(b) 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 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 nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and 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, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), 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.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and
no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith
other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been
(or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets
of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing
a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property
or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in
a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not,
individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Pricing Prospectus and the Prospectus, (iii) the notice and/or
application(s) to each applicable Trading Market for the issuance and sale of the Securities and the listing of the Shares and Warrant
Shares for trading thereon in the time and manner required thereby, and (iv) such filings as are required to be made under applicable
state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free
and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares
of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in
conformity with the requirements of the Securities Act, which became effective on [ ], 2023, including the Pricing Prospectus and the
Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Company was at the
time of the filing of the Registration Statement eligible to use Form S-1. The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of
the Pricing Prospectus or the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or,
to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission,
shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto
became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed
and will conform in all material respects to 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 Pricing Prospectus and the Prospectus and any amendments or supplements thereto, at the time the Pricing Prospectus or the Prospectus,
as applicable, or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects
to 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 the light of the circumstances under which they were made, not misleading.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant
to the exercise of employee stock options under the Company’s equity incentive plans, the issuance of shares of Common Stock to
employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock
Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction
Documents. Except as set forth on Schedule 3.1(g) and except as a result of the purchase and sale of the Securities, there are
no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital
stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common
Stock or other securities to any Person (other than the Purchasers). There are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary. Except as set forth in Schedule 3.1(g), there are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such
Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder,
the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
(2) years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Pricing Prospectus
and the Prospectus, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a
valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, 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 Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth in the Pricing Prospectus or on Schedule 3.1(i), (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to
GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements
to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director
or Affiliate, except pursuant to existing Company equity compensation plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set
forth on Schedule 3.1(i) or in the Pricing Prospectus, no event, liability, fact, circumstance, occurrence or development has occurred
or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable
securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day
prior to the date that this representation is made.
(j) Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state, local and foreign
laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse
Effect.
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“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 where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) 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 (ii) Liens for the payment of federal,
state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, 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.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license
rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any
rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions
With Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any
transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any equity incentive plans of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, that are effective as of the date hereof and as of the Closing Date, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits
under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules
and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company
and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date,
the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the
conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as
of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such
term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially
affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except as set forth in the Pricing Prospectus or the Prospectus, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary 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 Purchasers 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
that may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(v) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) 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 under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic
transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the
fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken 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 Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Pricing Prospectus
or the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and
its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement,
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press releases
disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no
Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth in Section 3.2 hereof.
(z) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither
the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on
which any of the securities of the Company are listed or designated.
(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry
on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it
to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts
on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its
debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or
liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule
3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or
for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the
ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of
others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course
of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb) Tax Status. Except
for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the
Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise
tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) 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 and (iii)
has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(cc) Foreign Corrupt Practices.
Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf
of the Company or any Subsidiary, 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 any Subsidiary (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 FCPA.
(dd) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(dd) of the Disclosure Schedules. To the knowledge and belief of
the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2023.
(ee) Acknowledgment Regarding
Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company
further acknowledges that no Purchaser is 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 thereby and any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental
to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision
to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
(ff) Acknowledgment Regarding
Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding, it is understood
and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed,
to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this
or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii)
any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly,
presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation
with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands
and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities
are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities
are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests
in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned
hedging activities do not constitute a breach of any of the Transaction Documents.
(gg) Regulation M Compliance.
The Company has not, and to its knowledge no one 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, other than,
in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement of the Securities.
(hh) FDA. As to each
product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food, Drug and
Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested,
distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance
with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not have
a Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge, threatened, action (including any lawsuit,
arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its
Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the
FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of,
the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical
Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising
or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by
the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters
or proposes to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges
any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all
material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA
that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced
or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed
or proposed to be developed by the Company.
(ii) Equity
Incentive Plans. Each stock option granted by the Company under such applicable equity incentive plan was granted (i) in accordance
with the terms of the Company’s equity incentive plan and (ii) with an exercise price at least equal to the fair market value of
the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under
the Company’s equity incentive plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(jj) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information
technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”),
except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition
that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and
the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of
any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the
Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(kk) Office of Foreign
Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”).
(ll) U.S. Real Property
Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section
897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(mm) Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the
outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal
Reserve.
(nn) Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes
and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8),
(a)(9), (a)(12), or (a)(13) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the
Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the
Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance
of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary
to such Purchaser.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on
the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or
similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance
or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise
shall be issued free of all legends. If at any time following the date hereof the Registration Statement (or any subsequent registration
statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale
of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is
not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available
for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company
to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws). The Company
shall use best efforts to keep a registration statement (including the Registration Statement) registering the issuance or resale of the
Warrant Shares effective during the term of the Warrants.
4.2 Furnishing
of Information. Until the earlier of the time that (i) no Purchaser owns Securities or (ii) the Common Warrants have expired, the
Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required
to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting
requirements of the Exchange Act.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of
any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval
is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including, without
limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers or any of their Affiliates
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Purchaser shall
be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with
the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such
disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice
of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.5 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material pricing terms of the transactions contemplated by the Transaction Documents, which
shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf
will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such information
and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any
of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not
have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries or any of their respective
officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.
4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder as set forth in the Pricing Prospectus
and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables
in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock
Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners
or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of
or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations,
warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such
stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which
is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against
any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party 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 Purchaser Party. Any Purchaser Party 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 Purchaser Party except to the extent
that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company
shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to
any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements
made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received
or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares
pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the Trading
Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares
and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Market.
The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in
such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and
Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably
necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility
of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including,
without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection
with such electronic transfer.
4.11 Subsequent
Equity Sales.
(a) From
the date hereof until sixty (60) days following the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file
any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement on Form S-8
in connection with any employee benefit plan.
(b) From
the date hereof until one (1) year following the Closing Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to
receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based
upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such
debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after
the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market” facility, whereby the Company may issue securities
at a future determined price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled; provided, however, that, after six (6) months following the Closing Date, the entry
into and/or the issuance of shares of Common Stock in an “at the market” facility with the Placement Agent as sales agent
shall not be deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
4.12 Equal
Treatment of Purchasers. No consideration (including any modification of this Agreement) shall be offered or paid to any Person to
amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of
the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not
in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities
or otherwise.
4.13 Capital
Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification
of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the Shares other
than a reverse stock split that is required, in the good faith determination of the Board of Directors, to maintain the listing of the
Common Stock on the Trading Market.
4.14 Exercise
Procedures. The forms of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the Purchasers
in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers
to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall
any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the
Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions
and time periods set forth in the Transaction Documents.
4.15 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to
a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance
of the terms of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated
on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Pricing Prospectus and the Prospectus,
contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email
attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided
pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares and Prefunded Warrants
based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver,
by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or at least 50.1%
in interest (based on the initial Subscription Amounts hereunder) in the case of a group of Purchasers) shall also be required. No waiver
of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or
waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by
the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company
in Section 3.1, the covenants of the Company in Article 4 and the representations and warranties of the Purchasers in Section 3.2. This
Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
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 other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section
4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall be deemed to have been duly and validly delivered and shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature
page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of an exercise
of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice
concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration
of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement
warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents
the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience
of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that
each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and
not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
5.19 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
BLUEJAY DIAGNOSTICS, INC. | |
Address for Notice: |
| |
|
| |
360 Massachusetts Avenue |
| |
Suite 203 |
| |
Acton, Massachusetts 01720 |
By: |
| |
|
|
Name: |
Neil Dey | |
E-Mail: neil.dey@bluejay.com |
|
Title: |
Chief Executive Officer | |
|
|
|
| |
|
With a copy to (which shall not constitute notice): | |
|
| |
|
Hogan Lovells US LLP | |
|
Columbia Square | |
|
555 Thirteenth Street, NW | |
|
Washington, DC 20004 | |
|
Attn: Brian O’Fahey, Esq. | |
|
Email: brian.ofahey@hoganlovells.com | |
|
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO BJDX
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory: _________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Shares: _________________
Prefunded Warrant Shares: ___________ Beneficial Ownership Blocker
☐ 4.99% or ☐ 9.99%
Common Warrant Shares: __________________ Beneficial Ownership Blocker
☐ 4.99% or ☐ 9.99%
EIN Number: ____________________
☐ Notwithstanding anything contained
in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities set forth
in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell such securities
to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall occur by the
second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated by this
Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be
an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or
the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE PAGES CONTINUE]
Schedule A
Exhibit
23.1
Consent of Independent Registered
Public Accounting Firm
We consent to the incorporation by reference in this Amendment No.1
to the Registration Statement (No. 333-275697) on Form S-1 and related Prospectus of Bluejay Diagnostics, Inc. of our report dated March
20, 2023, relating to the consolidated financial statements of Bluejay Diagnostics, Inc., appearing in the Annual Report on Form 10-K
of Bluejay Diagnostics, Inc. for the year ended December 31, 2022.
We also consent to the reference to our firm under the heading “Experts”
in such Prospectus.
/s/ Wolf & Company, P.C.
Boston, Massachusetts
December 21, 2023
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