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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d)
of the Securities Exchange
Act of 1934
Date of Report (Date
of earliest event reported): August 20, 2024
EYENOVIA, INC.
(Exact Name of Registrant
as Specified in its Charter)
Delaware |
|
001-38365 |
|
47-1178401 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
295 Madison Avenue, Suite 2400, New York, NY
10017
(Address of Principal Executive Offices, and
Zip Code)
(833) 393-6684
Registrant’s Telephone Number, Including
Area Code
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section
12(b) of the Act:
(Title of each class) |
|
(Trading
Symbol) |
|
(Name of each exchange
on which registered) |
Common stock, $0.0001 par value |
|
EYEN |
|
The Nasdaq Stock Market
(Nasdaq Capital Market) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
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 13(a) of the Exchange Act. ¨
Item 1.01. Entry Into a Material Definitive
Agreement.
On August 21, 2024,
Eyenovia, Inc. (the “Company”) agreed to sell 12,850,000 shares (the “Shares”) of common stock, par value
$0.0001 per share, to purchasers, in some cases pursuant to a securities purchase agreement (the “Purchase Agreement”) with
certain institutional and accredited investors. The offering price is $0.40 per Share.
The
aggregate gross proceeds to the Company from the offering of the Shares (the “Offering”) are expected to be approximately
$5.14 million. The Company intends to use the net proceeds from the Offering to fund commercialization activities for its products,
Mydcombi and clobetasol propionate, to complete the CHAPERONE pediatric myopia clinical study, and for working capital and general corporate
purposes. Proceeds may also be used to repay amounts outstanding under the Company’s Loan and Security Agreement with Avenue Capital
Management II, L.P. and related entities.
The Offering is being
made pursuant to an effective registration statement on Form S-3 (Registration Statement No. 333-261638), as previously filed
with and declared effective by the Securities and Exchange Commission (the “SEC”), and a related prospectus. The Offering
is expected to close on or about August 22, 2024, subject to the satisfaction of customary closing conditions.
The Company has engaged
Dawson James Securities, Inc. as placement agent for the Offering. The Company has agreed to pay customary placement fees and reimburse
certain expenses of the placement agent.
The Purchase Agreement
contains customary representations, warranties and agreements by the Company, customary conditions to closing and indemnification obligations
of the Company and the purchasers signatory thereto. The representations, warranties and covenants contained in the Purchase Agreement
were made only for purposes of the Purchase Agreement and as of a specific date, were solely for the benefit of the parties to the Purchase
Agreement and may be subject to limitations agreed upon by the contracting parties.
The foregoing summary
of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the form of Purchase Agreement
which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein.
The legal opinion of Covington & Burling
LLP relating to the securities being offered is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on
Form 8-K does not constitute an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there
be any sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state or jurisdiction.
Forward-Looking Statements
Except for historical
information, all the statements, expectations and assumptions contained in this Current Report on Form 8-K are forward-looking statements.
Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations,
strategies, predictions or any other statements relating to the Company’s future activities or other future events or conditions,
including statements regarding the completion of the Offering, the intended use of net proceeds from the Offering, and potential regulatory
approvals and accessible markets for the Company’s product candidates. These statements are based on current expectations, estimates
and projections about the Company’s business based, in part, on assumptions made by management. These statements are not guarantees
of future performance and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results
may, and in some cases are likely to, differ materially from what is expressed or forecasted in the forward-looking statements due to
numerous factors discussed from time to time in documents which the Company files with the SEC.
Any forward-looking statements speak only as of
the date on which they are made, and except as may be required under applicable securities laws, the Company does not undertake any obligation
to update any forward-looking statements.
Item 7.01. Regulation FD Disclosure.
On August 20, 2024, the Company issued a press
release announcing the launch of the Offering. On August 21, 2024, the Company issued a press release announcing the pricing of the
Offering. Copies of the press releases are furnished as Exhibit 99.1 and Exhibit 99.2, respectively, to this Current Report
on Form 8-K and are incorporated herein by reference.
The information contained in this Item 7.01, including
Exhibit 99.1 and Exhibit 99.2, is being “furnished” and shall not be deemed “filed” for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability
of that Section or Sections 11 and 12(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The
information contained in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2, shall not be incorporated by reference into
any registration statement or other document pursuant to the Securities Act or into any filing or other document pursuant to the Exchange
Act, except as otherwise expressly stated in any such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
EYENOVIA, INC. |
|
|
Date: August 22, 2024 |
/s/ John Gandolfo |
|
John Gandolfo |
|
Chief Financial Officer |
Exhibit 5.1
Eyenovia, Inc.
295 Madison Avenue, Suite 2400
New York, New York 10017
Ladies and Gentlemen:
We have acted as counsel
to Eyenovia, Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company
under the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale of 12,850,000 shares (the
“Shares”) of the Company’s common stock, par value $0.0001 per share, including pursuant to a Securities Purchase
Agreement (the “Purchase Agreement”), dated August 21, 2024, by and among the Company and the purchasers named
on the signature pages thereto. The offer and sale of the Shares are being registered under the Securities Act pursuant to the Company’s
Registration Statement on Form S-3 (File No. 333-261638), which was filed with the United States Securities and Exchange Commission
(the “Commission”) on December 14, 2021 (such registration statement, as amended to the date hereof, is referred
to herein as the “Registration Statement”).
We have reviewed:
| (i) | the Purchase Agreement; |
| (ii) | the Registration Statement; |
| (iii) | the preliminary prospectus, consisting
of the base prospectus, dated December 14, 2021, included in the Registration Statement
(the “Base Prospectus”), as supplemented by a preliminary prospectus supplement,
dated August 20, 2024, relating to the offering of the Shares, filed with the Commission
on August 20, 2024, pursuant to Rule 424(b) under the Securities Act; |
| (iv) | the notice of the Registration Statement’s
effectiveness, dated December 23, 2021, posted on the website of the Commission at www.sec.gov;
and |
| (v) | the final prospectus, consisting of the
Base Prospectus, as supplemented by a final prospectus supplement dated August 21, 2024,
relating to the offering of the Shares, filed with the Commission on August 21, 2024
pursuant to Rule 424(b) under the Securities Act (the “Prospectus”). |
We have also reviewed such
corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the
purposes of this opinion.
We have assumed that all
signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us
conform to the originals.
We have relied as to certain
matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible.
Based upon the foregoing,
and subject to the assumptions and qualifications set forth herein, we are of the opinion that the Shares have been duly authorized,
and when issued and sold by the Company (where applicable, pursuant to the terms of the Purchase Agreement) and upon receipt by the Company
of full payment therefor (where applicable, in accordance with the Purchase Agreement), will be validly issued, fully paid and non-assessable;
![](https://www.sec.gov/Archives/edgar/data/1682639/000110465924091829/tm2422365d1_ex5-1img003.jpg)
Eyenovia, Inc.
August 22, 2024
Page 2
We are members of the bars
of the Commonwealth of Massachusetts and the State of New York. We do not express any opinion herein on any laws other than the Delaware
General Corporation Law.
We hereby consent to the
filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated the date hereof related to the
offering of the Shares. We also hereby consent to the reference to our firm under the heading “Legal Matters” in the Prospectus
constituting part of the Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Covington & Burling LLP |
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of August 21, 2024, between Eyenovia, 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),
as to the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares (each, 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:
“Action”
shall have the meaning ascribed to such term in Section 3.1(l).
“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.
“Auditor”
means Marcum LLP.
“Beneficial Ownership
Limitation” shall have the meaning ascribed to such term in Section 2.1(a).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(mm).
“Board of Directors”
means the board of directors, or any authorized committee thereof, of the Company.
“Closing”
means the closing of the purchase and sale of the Securities 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 Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission”
means the U.S. 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 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.
“Company Counsel”
means Covington & Burling LLP, with offices located at One International Place, Suite 1020, Boston, MA 02110-2600.
“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.
“DVP” shall
have the meaning ascribed to such term in Section 2.1(b).
“DWAC”
shall have the meaning ascribed to such term in Section 2.1(a).
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“Environmental Laws”
shall have the meaning ascribed to such term in Section 3.1(o).
“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 units, or other equity awards to employees, consultants,
contractors, advisors, officers, or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by a
majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established
for such purpose for services rendered to the Company, or as an inducement to employment pursuant to Nasdaq Listing Rule 5635(c)(4),
(b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and upon exercise of 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) except as set forth in Section 4.11(b), issuances pursuant to that certain Sales
Agreement, dated December 14, 2021, by and between the Company and Leerink Partners LLC, and the related prospectus, (d) shares
of Common Stock or securities exercisable or exchangeable for or convertible into shares of Common Stock sold to employees, directors,
consultants, or any of their affiliated entities in the ordinary course of business or pursuant to agreements or in connection with commitments
in place as of the date hereof, and (e) securities issued pursuant to acquisitions, joint ventures, strategic alliances, or other
strategic transactions, including without limitation collaborations or arrangements involving research and development or the sale or
licensing of intellectual property, approved by a majority of the disinterested directors of the Company, except for 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 (for avoidance of doubt, securities issued to a venture arm of a strategic investor shall be deemed an “Exempt Issuance”),
provided in the case of each of clauses (d) and (e), 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 4.12(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“FDA” shall
have the meaning ascribed to such term in Section 3.1(oo).
“Federal Reserve”
shall have the meaning ascribed to such term in Section 3.1(mm).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(j).
“Governmental Permits”
shall have the meaning ascribed to such term in Section 3.1(oo).
“Health Care Laws”
shall have the meaning ascribed to such term in Section 3.1(oo).
“Intellectual Property”
means all patents, patent applications, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights,
copyright registrations, licenses, inventions, trade secrets, Internet domain names, Internet domain name registrations, technology,
registrations, trade secret rights, know-how and other intellectual property.
“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance of any
kind whatsoever.
“Lock-Up Agreements”
means the lock-up agreements, each dated as of the date hereof in substantially the form of Exhibit A.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(a).
“Material Permits”
shall have the meaning assigned to such term in Section 3.1(q).
“Money Laundering
Laws” shall have the meaning assigned to such term in Section 3.1(nn).
“OFAC”
means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Offering”
means the offering of the Securities hereunder.
“Per Pre-Funded Warrant
Purchase Price” means the Per Share Purchase Price minus $0.0001.
“Per Share Purchase
Price” equals $0.40, 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.
“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.
“Placement Agent”
means Dawson James Securities Inc.
“Pre-Funded Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pre-Funded Warrants”
means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.3(a) hereof,
in substantially the form of Exhibit B attached hereto.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company or any of its properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Prospectus”
means the base prospectus filed under the Registration Statement, as supplemented by the Prospectus Supplement.
“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that will be filed with the Commission
and delivered by the Company to each Purchaser at or prior to the Closing.
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.8.
“Registration Statement”
means the effective registration statement with the Commission on Form S-3 (File No. 333-261638), including all information,
documents and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Securities.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(d).
“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.
“Sanctions”
shall have the meaning ascribed to such term in Section 3.1(jj).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(i).
“Securities”
means for each Purchaser, the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares purchased pursuant to this Agreement.
“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.
“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 or Pre-Funded Warrants (in lieu of Shares) hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in U.S. dollars and in immediately available funds.
“Trading Day”
means a day on which the Trading Market is open for trading.
“Trading Market”
means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE
American, NYSE Arca, the OTC Bulletin Board, or the OTCQX or the OTCQB operated by the OTC Markets Group, Inc. (or any nationally
recognized successor to any of the foregoing), then the “Trading Market” shall mean such other market or exchange on which
the Company’s Common Stock is then listed or traded.
“Transaction Documents”
means this Agreement, the Pre-Funded 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 Equiniti Trust Company, LLC, and any successor transfer agent of the Company.
ARTICLE II
PURCHASE AND SALE
2.1. Closing.
(a) On
the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally
and not jointly, agrees to purchase, the number of shares of Common Stock set forth under the heading “Subscription Amount”
on the Purchaser’s signature page hereto, at the Per Share Purchase Price. Notwithstanding anything herein to the contrary,
to the extent that a Purchaser determines, in its sole discretion, that as a result of such Purchaser’s Subscription Amount, such
Purchaser (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such
Purchaser’s Affiliates) would beneficially own shares of Common Stock in excess of the Beneficial Ownership Limitation, the Purchaser
may elect to purchase Pre-Funded Warrants in lieu of the Shares as determined pursuant to Section 2.3(a). The “Beneficial
Ownership Limitation” shall be 4.99% (or, at the election of the Purchaser, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of the Securities on the Closing Date. In each case, the election to receive Pre-Funded
Warrants is solely at the option of the Purchaser.
(b) Upon
satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via the exchange of documents
and signatures or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement
of the Securities shall occur via Delivery Versus Payment (“DVP”) settlement (i.e., on the Closing Date, the
Company shall issue the shares and/or Pre-Funded Warrants 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 Securities, the
Placement Agent shall promptly electronically deliver such Securities to the applicable Purchaser, and payment therefor shall be made
by the Placement Agent (or its clearing firm) by wire transfer to the Company).
(c) 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 any Securities to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement
Securities”), such Person shall, automatically hereunder (without any additional required actions by such Purchaser or the Company),
be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company shall be deemed unconditionally bound
to sell, such Pre-Settlement Securities to such Purchaser at the Closing; provided, that the Company shall not be required to deliver
any Pre-Settlement Securities to such Person prior to the Company’s receipt of the purchase price for such Pre-Settlement Securities
hereunder; and provided, further, that the Company hereby acknowledges and agrees (i) that the foregoing shall not constitute a representation
or covenant by such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement Securities during the Pre-Settlement
Period and (ii) that any such decision to sell any Pre-Settlement Securities by such Purchaser shall solely be made at the time such
Purchaser elects to effect any such sale, if any.
2.2. Deliveries.
(a) On
or prior to the Closing Date, 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, in form and substance reasonably satisfactory to the Placement Agent;
(iii) the
Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial
Officer;
(iv) 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 (“DWAC”) Shares equal to the number of shares of Common Stock
set forth on such Purchaser’s signature page hereto, registered in the name of such Purchaser and Pre-Funded Warrants equal
to the number of Pre-Funded Warrants set forth on such Purchaser’s signature page hereto, registered in the name of such Purchaser;
(v) the
Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act);
(vi) Lock-up
Agreements, in form and substance reasonably acceptable to the Placement Agent, executed by each of the Company’s executive officers
and directors;
(vii) an
Officer’s Certificate, in form and substance reasonably satisfactory to the Placement Agent; and
(viii) a
Secretary’s Certificate, in form and substance reasonably satisfactory to the Placement Agent.
(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, which shall be made available for DVP settlement with the Company or its designees.
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
(as defined below), 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 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 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 Trading Market
on which it is currently listed, 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 U.S. or New York State authorities,
nor shall there have occurred after the date of this Agreement 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 SEC Reports, which shall qualify any representation made herein to the extent
of the disclosure contained in such SEC Reports, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Organization
and Qualification. The Company has been duly organized and validly exists as a corporation in good standing under the laws of its
jurisdiction of incorporation. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing which (individually and in the aggregate) would not have a
Material Adverse Effect. No Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification. The Company is not in violation nor default of any of the provisions of its
certificate of incorporation or bylaws. The term “Material Adverse Effect” means a material adverse effect on (i) the
business, management, condition (financial or otherwise), results of operations, stockholders’ equity, assets or properties of the
Company, or (ii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document. As of the date of this Agreement, the Company does not have any subsidiaries.
(b) 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 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 (as defined below). This Agreement and each other Transaction Document to which the Company
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 general equitable principles
and 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.
(c) 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 certificate of incorporation or bylaws, (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or result in the creation
of any Lien upon any of the properties or assets of the Company, 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 is subject (including federal and state securities laws and regulations), or by which any property or asset of the
Company is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected
to result in a Material Adverse Effect.
(d) 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 (including state blue sky law), 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 Prospectus
Supplement, (iii) notices and/or application(s) to and approvals by each applicable Trading Market for the listing of the Shares
and Pre-Funded Warrant Shares for trading thereon in the time and manner required thereby, and (iv) filings required by the Financial
Industry Regulatory Authority, Inc. (collectively, the “Required Approvals”).
(e) Issuance
of the Shares and Pre-Funded Warrant Shares; Qualification; Registration.
(i) The
Shares 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 non-assessable, free and clear of all Liens imposed by the Company, except for restrictions set forth in the Transaction
Documents. The Pre-Funded Warrant Shares are duly authorized and, when issued in accordance with the terms of the Pre-Funded Warrants,
will be duly and validly issued, fully paid and non-assessable, and free and clear of all Liens imposed by the Company, except for restrictions
set forth in the Transaction Documents. 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 Pre-Funded Warrants. The Securities are not and will not be subject to the preemptive
rights of any holders of any security of the Company or similar contractual rights granted by the Company.
(ii) The
Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which Registration
Statement was declared effective on December 23, 2021, including the Prospectus, and such amendments and supplements thereto as may
have been required to the date of this Agreement. 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 Prospectus or the Prospectus
Supplement 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
Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became
effective as determined under the Securities Act, 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 Prospectus and any amendments or supplements thereto, at the time the Prospectus 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. The Company was
at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under
the Securities Act and it meets the transaction requirements with respect to the aggregate market value of the common equity held by non-affiliates
prior to this offering as set forth in General Instruction I.B.1 of Form S-3.
All references in this Agreement
to the Registration Statement, the Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any
copy thereof filed with the Commission on EDGAR.
(f) Securities
Act Compliance. The Registration Statement complies, and the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will comply, in all material respects, with the applicable provisions of the Securities Act. The Registration
Statement, when it became effective, did not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of its filing date, and any amendment
thereof or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) No
Stop Orders. No order preventing or suspending the use of the Registration Statement has been issued by the Commission.
(h) Capitalization.
The equity capitalization of the Company is as set forth in the Registration Statement and the SEC Reports as of the dates indicated therein.
All of the issued and outstanding shares of Common Stock are fully paid and non-assessable and have been duly and validly authorized and
issued, in compliance with all applicable federal and state securities laws and not in violation of or subject to any preemptive or similar
right that entitles any person to acquire from the Company any Common Stock or other security of the Company or any security convertible
into, or exercisable or exchangeable for, Common Stock or any other such security, except for such rights as may have been fully satisfied
or waived prior to the date hereof. Except as a result of the issuance and sale of the Securities, the Company has no outstanding options,
warrants, scrips or 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 Common Stock, or
contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional Common Stock or
Common Stock Equivalents and no Person has any right of first refusal, pre-emptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents, except for such rights as may have been fully satisfied
or waived prior to the date hereof. The issuance and sale of the Securities will not obligate the Company to issue Common Stock or other
securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the
Company 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 (other than in connection with a stock split, recapitalization, or similar transaction). Except for the Required
Approvals, no further approval or authorization of any shareholder, the Board of Directors or others is required for the issuance and
sale of Securities. There are no outstanding securities or instruments of the Company that contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem an equity
security of the Company. The Company does not have any stock appreciation rights or “phantom share” plans or agreements or
any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly issued, fully paid and non-assessable,
have been issued in compliance with all federal and state securities laws where applicable, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in the SEC Reports,
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.
(i) Reports.
The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities
Act and 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 materials) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being
collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension (or waiver
from the Commission) 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.
(j) Financial
Statements. The financial statements of the Company, including the notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus 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 accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis during the
periods involved, 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
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.
(k) Material
Changes; Undisclosed Events, Liabilities or Developments. Subsequent to the respective dates as of which information is given in the
Prospectus and the Prospectus Supplement, (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 material 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, and (iii) 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. Except for the issuance
of the Securities contemplated by this Agreement, 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 business, 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.
(l) Litigation.
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 or any of its properties before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) that (i) adversely
affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) would,
if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor
any director or executive 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, which could result in a Material Adverse Effect. 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 executive officer of the Company.
(m) 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 employees is a member of a union
that relates to such employee’s relationship with the Company, and the Company is not party to a collective bargaining agreement,
and the Company believes that its relationship with its employees is good. To the knowledge of the Company, no executive officer of the
Company 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 to any liability with respect to any of
the foregoing matters. The Company is 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.
(n) Compliance.
The Company: (i) is not 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 under), nor has the Company 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 not
in violation of any judgment, decree or order of any court, arbitrator or other governmental authority and (iii) is not and has not
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 of (i), (ii) and (iii) as could not have or reasonably be expected to
result in a Material Adverse Effect.
(o) Environmental
Law. The Company is not in violation of any statute, any rule, regulation, decision or order of any governmental authority or any
court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”),
does not own or operate any real property contaminated with any substance that is subject to any environmental laws, is not liable for
any off-site disposal or contamination pursuant to any Environmental Laws, and is not subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim would individually or in the aggregate, have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such a claim. The Company does not anticipate incurring any material
capital expenditures relating to compliance with Environmental Laws.
(p) Title
to Assets. The Company has good and marketable title to all real property owned by it and good and marketable title in all personal
property owned by it that is material to the business of the Company, 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 (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 currently held under lease by the Company is held by it under valid, subsisting and enforceable leases with which the Company
is in compliance in all material respects.
(q) Regulatory
Permits. The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct its business as described in the SEC Reports, except where the failure to possess such permits
would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and the Company has not
received any notice of proceedings relating to the revocation or modification of any Material Permit.
(r) Intellectual
Property. The Company owns, possesses, or can acquire on reasonable terms, all Intellectual Property necessary for the conduct of
the Company’s business as now conducted or as described in the Registration Statement, the Prospectus and the Prospectus Supplement
to be conducted, except as such failure to own, possess, or acquire such rights would not result in a Material Adverse Effect. Furthermore,
except as described in the Registration Statement, the Prospectus and the Prospectus Supplement, (i) to the knowledge of the Company,
there is no infringement, misappropriation or violation by third parties of any such Intellectual Property, except as such infringement,
misappropriation or violation would not result in a Material Adverse Effect; (ii) there is no pending or, to the knowledge of the
Company, threatened, action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual
Property, and the Company is unaware of any objective facts which would form a reasonable basis for any such claim; (iii) the Intellectual
Property owned by the Company, and to the knowledge of the Company, the Intellectual Property licensed to the Company, has not been adjudged
invalid or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intellectual Property; and (iv) there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates
any Intellectual Property or other proprietary rights of others, and the Company has not received any written notice of such claim.
(s) Insurance.
The Company is 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 is engaged. The Company does not have any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(t) Transactions
With Affiliates and Employees. None of the executive officers or directors of the Company and, to the knowledge of the Company, none
of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as
employees, executive 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 executive officer, director or such employee or, to the knowledge of the Company, any
entity in which any executive 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 stock option or omnibus incentive plan of the Company.
(u) Sarbanes-Oxley;
Internal Accounting Controls. The Company is in material compliance with all applicable requirements of the Sarbanes-Oxley Act of
2002, as amended. The Company maintains 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. Since
the end of the latest audited fiscal year, there have been no changes in the internal control over financial reporting (as such term is
defined in the Exchange Act) of the Company that have materially affected, or are reasonably likely to materially affect, the internal
control over financial reporting of the Company.
(v) Certain
Fees. Except for fees payable to the Placement Agent and fees that may be payable pursuant to the engagement letter, dated March 12,
2024, between the Company and William Blair & Company, L.L.C., no brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by the Transaction Documents. Other than to Persons engaged by any Purchaser, 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.
(w) Investment
Company. The Company is not, and immediately after receipt of payment for the Securities, will not be required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(x) Registration
Rights. No Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the
Company that has not been satisfied or waived prior to the date hereof.
(y) Listing
and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange Act and files
periodic reports with the Commission; the Common Stock is registered with the Commission under Section 12(b) of the Exchange
Act and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act. The Company has not received any notice from that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the
Common Stock are or have 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 in compliance with all such listing and maintenance requirements, except that the Common Stock
is currently trading below the minimum bid price required under the listing rules of the Trading Market on which the Common Stock
is currently listed. 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.
(z) 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 jurisdiction
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.
(aa) 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. 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 business and the transactions contemplated hereby, including
pursuant to the SEC Reports, is true and correct in all material respects and does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which
they were 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.
(bb) 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 stockholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(cc) 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 has no current intention of filing for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one (1) year from the Closing Date. The SEC Reports set forth as of the date hereof
all outstanding secured and unsecured Indebtedness of the Company or for which the Company 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. The Company is not in default with respect to any Indebtedness.
(dd) 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 (i) has made or filed all U.S. federal, state and local income and all foreign tax returns, reports and
declarations required by any jurisdiction to which it is subject and (ii) has paid all taxes and other governmental assessments and
charges, fines or penalties that are material in amount, shown or determined to be due on such returns, reports and declarations. There
is no pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability
for any tax to be imposed upon the properties or assets of the Company for which there is not an adequate reserve reflected in the Company’s
financial statements included in the Registration Statement, the Prospectus and the Prospectus Supplement.
(ee) Foreign
Corrupt Practices; Criminal Acts. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf
of the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation of law,
or (iv) violated in any material respect any provision of FCPA.
(ff) Accountants.
The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the knowledge and belief of the
Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(gg) 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.
(hh) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.13 hereof), 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 securities offering 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 (in material compliance with applicable laws) at various times during the period that the Securities are
outstanding, 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.
(ii) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement Agent, as to which no
representation is made) 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.
(jj) Office
of Foreign Assets Control. Neither the Company nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate
of the Company is currently subject to any “Sanctions,” which shall include but are not limited to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) and the Company will
not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any Sanctions, including but not limited to U.S. sanctions administered by OFAC.
(kk) Stock
Option and Omnibus Incentive Plans. Each stock option granted by the Company under the Company’s stock option or omnibus incentive
plan, or as an inducement grant outside of such plan, was granted (i) in accordance with the terms of such plan, or under its terms,
respectively, and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock
option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option or omnibus
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 financial results or prospects.
(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 U.S. 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 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”).
The Company does not own or control, 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. The Company does not exercise 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 are and have been conducted at all times in compliance in all material respects 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, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(oo) Regulatory.
There is no legal or governmental proceeding to which the Company is a party or of which any property or assets of the Company or any
officer or director of the Company, in their roles as such, or any employee benefit plan sponsored by the Company, is the subject, including
any proceeding before the United States Food and Drug Administration of the U.S. Department of Health and Human Services (the “FDA”)
or comparable federal, state, local or foreign governmental authorities (it being understood that the interaction between the Company
and the FDA and such comparable governmental bodies relating to the clinical development and product approval process shall not be deemed
proceedings for purposes of this representation), which is required to be described in the Registration Statement, the Prospectus or the
Prospectus Supplement or a document incorporated by reference therein and is not described therein, or which, singularly or in the aggregate,
if determined adversely to the Company, could reasonably be expected to have a Material Adverse Effect; and to the Company’s knowledge,
no such proceedings are threatened by governmental authorities. The Company is in compliance with all applicable federal, state, local
and foreign laws, regulations, orders and decrees governing its business as prescribed by the FDA, or any other federal, state or foreign
agencies or bodies engaged in the regulation of pharmaceuticals or biohazardous substances or materials, except where noncompliance would
not, singly or in the aggregate, have a Material Adverse Effect. All preclinical and clinical studies conducted by or on behalf of the
Company to support approval for commercialization of the Company’s products have been conducted by the Company, or to the Company’s
knowledge by third parties, in compliance with all applicable federal, state or foreign laws, rules, orders and regulations, except for
such failure or failures to be in compliance as could not reasonably be expected to have, singularly or in the aggregate, a Material Adverse
Effect.
The Company possesses all licenses, certificates,
authorizations and permits issued by, and has made all declarations and filings with, the appropriate local, state, federal or foreign
governmental or regulatory agencies or bodies (including, without limitation, those administered by the FDA or by any foreign, federal,
state or local governmental or regulatory authority performing functions similar to those performed by the FDA) that are necessary for
the ownership or lease of its properties or the conduct of its business as described in the Registration Statement, the Prospectus and
the Prospectus Supplement (collectively, the “Governmental Permits”), except where any failures to possess or make
the same would not, singularly or in the aggregate, have a Material Adverse Effect. The Company is in compliance with all such Governmental
Permits and all such Governmental Permits are valid and in full force and effect, except where the noncompliance, validity or failure
to be in full force and effect would not, singularly or in the aggregate, have a Material Adverse Effect. the Company has not received
notification of any revocation, modification, suspension, termination or invalidation (or proceedings related thereto) of any such Governmental
Permit and to the knowledge of the Company, no event has occurred that allows or results in, or after notice or lapse of time or both
would allow or result in, revocation, modification, suspension, termination or invalidation (or proceedings related thereto) of any such
Governmental Permit and the Company has no reason to believe that any such Governmental Permit will not be renewed, except where such
revocation, modification, suspension, termination, invalidation or nonrenewal would not, singularly or in the aggregate, have a Material
Adverse Effect.
The
Company, and to the Company’s knowledge, its directors, officers, employees or agents, each in their respective roles with the Company,
are and have been in compliance in all respects with applicable federal, state, local and foreign health care regulatory laws, including
without limitation, laws related to fraud and abuse, payment transparency, and privacy and security of protected health information (collectively,
“Health Care Laws”), except where such noncompliance would not, singularly or in the aggregate, have a Material
Adverse Effect. The Company has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any court, arbitrator or governmental or regulatory authority or third party alleging that the Company
or its personnel have violated any applicable Health Care Law, nor, to the Company’s knowledge, has any such claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action been threatened, which, individually or in the aggregate,
might result in any Material Adverse Effect.
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 or thereof, 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 business.
(c) 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.
(d) 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.
(e) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions
contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions
with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the
Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in
the future.
(f) No
Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the Purchaser and
any other Purchaser and any of the Company’s stockholders as of the date hereof, regulating the management of the Company, the stockholders’
rights in the Company, the transfer of shares in the Company, including any voting agreements, stockholder agreements or any other similar
agreement, even if its title is different or has any other relations or agreements with any of the Company’s stockholders, directors
or officers.
(g) Brokers.
No agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of the Purchaser
is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, for
which the Company or any of its Affiliates after the Closing could have any liabilities in connection with this Agreement, any of the
transactions contemplated by this Agreement, or on account of any action taken by the Purchaser in connection with the transactions contemplated
by this Agreement.
(h) Independent
Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company
to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
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, except as set forth in this Agreement, 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. Legends.
(a) The
Shares, Pre-Funded Warrants and Pre-Funded Warrant Shares shall be issued free of legends.
(b) If
all or any portion of a Pre-Funded Warrant is exercised at a time when there is an effective registration statement to cover the issuance
or resale of the Pre-Funded Warrant Shares or if the Pre-Funded Warrant is exercised via cashless exercise, the Pre-Funded Warrant Shares
issued pursuant to any such exercise shall be issued free of all restrictive 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 initial sale by the Company, or the resale by the Purchasers, of the Pre-Funded Warrant Shares, the Company shall immediately
notify the holders of the Pre-Funded 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 initial sale by the Company or the resale
by the Purchasers of the Pre-Funded 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 Pre-Funded Warrant Shares in compliance with applicable federal and state securities
laws). The Company shall use commercially reasonable efforts to keep a registration statement (including the Registration Statement) registering
the issuance or resale of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded Warrants.
4.2. Furnishing
of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities and (ii) the Pre-Funded
Warrants have been exercised in full, the Company covenants to maintain the registration of the Common Stock under Section 12(b) or
12(g) of the Exchange Act and to use its commercially reasonable efforts 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, except in the event that the Company consummates
(a) any transaction or series of related transactions as a result of which any Person (together with its Affiliates) acquires then
outstanding securities of the Company representing more than fifty percent (50%) of the voting control of the Company; (b) a merger
or reorganization of the Company with one or more other entities in which the Company is not the surviving entity; or (c) a sale
of all or substantially all of the assets of the Company, where the consummation of such transaction results in the Company no longer
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 stockholder approval prior to the closing of such other transaction unless stockholder
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 that
are required to be filed 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 their respective officers, directors, employees or agents 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 or any of its officers, directors, agents, employees or Affiliates, including without limitation, the Placement Agent, on
the one hand, and any of the Purchasers or any of their Affiliates on the other hand, with respect to the transactions contemplated hereby
shall terminate and be of no further force or effect. 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 applicable
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 applicable
law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure required
under this clause (b).
4.5. Stockholder
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 terms and conditions 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 to the receipt of such information
and agreed 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 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 or any of its officers, directors, agents, employees or Affiliates, or a duty
to the Company or any of its officers, directors, agents, employees or Affiliates 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, the Company shall simultaneously
with the delivery of such notice file such material non-public information on 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 will apply the net proceeds from the sale of the Securities hereunder for the purposes set forth in the Prospectus
Supplement and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment
of trade payables and accrued liabilities in the ordinary course of the Company’s business and repayment of obligations outstanding
as of the date of this Agreement and consistent with 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, stockholders, 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, stockholders, 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
caused by or based upon (a) any material breach of any of the representations or warranties made by the Company in this Agreement
or in the other Transaction Documents (b) any action instituted against a Purchaser Party 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 (except to the extent 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 that 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 to the applicable Purchaser Party, 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; provided, that if any Purchaser Party is finally judicially
determined not to be entitled to indemnification or payment under this Section 4.8, such Purchaser Party shall promptly reimburse
the Company for any payments that are advanced under this sentence. 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 the Shares
pursuant to this Agreement and the Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants.
4.10. Listing
of Common Stock. For as long as any Pre-Funded Warrants are outstanding and exercisable, the Company hereby agrees to use commercially
reasonable 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 Pre-Funded Warrant Shares on such Trading
Market and promptly secure the listing of all of the Shares and Pre-Funded Warrant Shares on such Trading Market to the extent required
by the rules of such Trading Market; provided, however, that the Purchasers acknowledge that the Common Stock is currently trading
below the minimum bid price required under the listing rules of the Trading Market on which the Common Stock is currently listed.
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 Pre-Funded Warrant Shares, and will take such other action as is necessary to cause all of the
Shares and Pre-Funded 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. For so
long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, the Company agrees to use commercially reasonable
efforts 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 thirty (30) days after the Closing Date, the Company shall not (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 filing the final Prospectus and a registration statement on Form S-8 in
connection with any employee benefit plan; provided that the limitation set forth in this Section 4.11(a) shall not apply to
any Exempt Issuance.
(b) From
the date hereof until fifteen (15) Trading Days after the Closing Date, the Company shall not issue any shares of Common Stock or Common
Stock Equivalents pursuant to that certain Sales Agreement, dated December 14, 2021, by and between the Company and Leerink Partners
LLC, and the related prospectus.
4.12. Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is
also offered to all of the parties to such Transaction Documents. 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 Shares or otherwise.
4.13. Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor
any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales,
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4.
Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement. Notwithstanding
the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees
that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in
any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant
to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and
(iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company after
the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14. Exercise
Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants sets forth the totality of the procedures required
of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information, or instructions shall
be required of the Purchasers to exercise their Pre-Funded 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 Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded Warrants and shall
deliver Pre-Funded Warrant Shares in accordance with the terms, conditions, and time periods set forth in the Transaction Documents.
4.15. [Reserved].
4.16. 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). The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges imposed by any
governmental body, agency or official (other than income taxes) by reason of the issuance of Shares to the Purchasers.
5.3. Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, 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.
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 that purchased at least 50.1% in interest of the Securities 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 of such 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. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains, material, non-public information regarding the Company, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K.
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. Third-Party
Beneficiaries. The Placement Agent shall be the third-party beneficiary of 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, stockholders, 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 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. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
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 suit, 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 suit, 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 suit, action or proceeding.
5.10. Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for the applicable statute
of limitations.
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, by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe
Sign), such signature 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” or other electronic or digital 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 Pre-Funded
Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice
concurrently (if such shares were delivered to the applicable Purchaser) 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
Pre-Funded 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 nonperformance
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
ArentFox Schiff LLP, the legal counsel of the Placement Agent, and ArentFox Schiff LLP, as 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 Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
5.20. Currency.
Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful currency of the United
States.
5.21. 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.
5.22. 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.
EYENOVIA, INC. |
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By: |
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Name: |
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Title: |
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Address
for Notice:
Eyenovia, Inc.
295 Madison Avenue
Suite 2400
New York, NY 10017
Attention: Michael Rowe, Chief Executive Officer
Email: [***]
With a
copy to (which shall not constitute notice):
Covington & Burling LLP
One International Place
Suite 1020
Boston, MA 02110-2600
Attention: Megan Gates
Email: [***]
[PURCHASER SIGNATURE PAGES TO CNSP
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:________________
Pre-Funded
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 on 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.
Exhibit A
Form of Lock-Up Agreement
(See attached)
Exhibit B
Form of Pre-Funded Warrant
(See attached)
Exhibit 99.1
![](https://www.sec.gov/Archives/edgar/data/1682639/000110465924091829/tm2422365d1_ex99-1img001.jpg)
Eyenovia, Inc. Announces Proposed Public Offering
NEW YORK, August 20, 2024 (GLOBE NEWSWIRE) – Eyenovia, Inc.
(“Eyenovia” or the “Company”) (NASDAQ: EYEN), a commercial-stage ophthalmic company, announced today that it intends
to offer and sell shares of its common stock (or pre-funded warrants in lieu thereof) in a best efforts offering. All of the securities
to be sold in the offering are to be offered by Eyenovia. The offering is subject to market conditions, and there can be no assurance
as to whether or when the offering may be completed, or as to the actual size or terms of the offering (the "Offering").
The Company intends to use the net proceeds from this Offering to fund
commercialization activities for Mydcombi and clobetasol propionate, complete the CHAPERONE pediatric myopia clinical study, and for working
capital and general corporate purposes, which may include the repayment of a portion of existing indebtedness.
Dawson James Securities, Inc. is the sole placement agent for
the offering.
The offering is being made pursuant
to a shelf registration statement on Form S-3 (File No. 333-261638), including a base prospectus, filed with the U.S. Securities
and Exchange Commission (the “SEC”) on December 14, 2021, and declared effective on December 23, 2021. The offering
will be made only by means of a prospectus supplement and accompanying prospectus. The preliminary prospectus supplement and accompanying
prospectus describing the terms of the proposed offering will be filed with the SEC and will be available on the SEC’s website located
at http://www.sec.gov. Electronic copies of the preliminary prospectus supplement may be obtained, when available, from Dawson James Securities, Inc.,
101 North Federal Highway, Suite 600, Boca Raton, FL 33432 or by telephone at (561) 391-5555, or by email at investmentbanking@dawsonjames.com.
Before investing in this offering, interested parties should read in their entirety the prospectus supplement and the accompanying prospectus
and the other documents that Eyenovia has filed with the SEC that are incorporated by reference in such prospectus supplement and the
accompanying prospectus, which provide more information about Eyenovia and such offering.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state
or jurisdiction.
About Eyenovia, Inc.
Eyenovia, Inc. is
an ophthalmic technology company commercializing Mydcombi™ (tropicamide and phenylephrine hydrochloride ophthalmic spray) 1%/2.5%
for mydriasis, Clobetasol Propionate Ophthalmic Suspension, 0.05% for postsurgical inflammation and pain, and developing the Optejet®
device for use both in connection with its own drug-device therapeutic product for pediatric progressive myopia as well as out-licensing
for additional indications. For more information, please visit Eyenovia.com.
Forward Looking Statements
Except for historical information, all the statements, expectations
and assumptions contained in this press release are forward-looking statements. Forward-looking statements include, but are not limited
to, statements that express our intentions, beliefs, expectations, strategies, predictions or any other statements relating to our future
activities or other future events or conditions, including those relating to the offering, the closing of the offering, the amount and
anticipated use of proceeds from the offering, estimated market opportunities for our product candidates and platform technology, the
timing for sales growth of our approved products, and the outcome of the process to explore strategic alternatives to maximize shareholder
value. These statements are based on current expectations, estimates and projections about our business based, in part, on assumptions
made by management. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are
difficult to predict. Therefore, actual outcomes and results may, and in some cases are likely to, differ materially from what is expressed
or forecasted in the forward-looking statements due to numerous factors discussed from time to time in documents which we file with the
U.S. Securities and Exchange Commission.
In addition, such statements could be affected by risks and uncertainties
related to, among other things: risks of our clinical trials, including, but not limited to, the costs, design, initiation and enrollment,
timing, progress and results of such trials; the timing of, and our ability to submit applications for, obtaining and maintaining regulatory
approvals for our products and product candidates; the potential advantages of our products, product candidates and platform technology;
the rate and degree of market acceptance and clinical utility of our products and product candidates; our estimates regarding the potential
market opportunity for our products and product candidates; reliance on third parties to develop and commercialize our products and product
candidates; the ability of us and our partners to timely develop, implement and maintain manufacturing, commercialization and marketing
capabilities and strategies for our products and product candidates; intellectual property risks; changes in legal, regulatory, legislative
and geopolitical environments in the markets in which we operate and the impact of these changes on our ability to obtain regulatory approval
for our products and product candidates; and our competitive position.
Any forward-looking statements speak only as of the date on which they
are made, and except as may be required under applicable securities laws, Eyenovia does not undertake any obligation to update any forward-looking
statements.
Eyenovia Contact:
Eyenovia, Inc.
John Gandolfo
Chief Financial Officer
jgandolfo@eyenovia.com
Eyenovia Investor Contact:
Eric Ribner
LifeSci Advisors, LLC
eric@lifesciadvisors.com
(646) 751-4363
Eyenovia Media Contact:
Eyenovia, Inc.
Norbert Lowe
Vice President, Commercial Operations
nlowe@eyenovia.com
Exhibit 99.2
![](https://www.sec.gov/Archives/edgar/data/1682639/000110465924091829/tm2422365d1_ex99-2img001.jpg)
Eyenovia Announces Pricing of $5.14 Million Public Offering
August 21, 2024
NEW YORK, August 21, 2024 (GLOBE NEWSWIRE) – Eyenovia, Inc.
(“Eyenovia” or the “Company”) (NASDAQ: EYEN), a commercial-stage ophthalmic company, announced today that it has
agreed to sell 12,850,000 shares of common stock at a price per share of $0.40 (the "Offering").
The closing of the Offering is expected to occur on or about August 22,
2024, subject to the satisfaction of customary closing conditions. All of the securities in the Offering are being sold by Eyenovia. Dawson
James Securities, Inc. is acting as the placement agent for the Offering.
The gross proceeds to Eyenovia from this Offering are expected to be
approximately $5.14 million, before deducting the placement agent’s fees and other offering expenses payable by Eyenovia. Eyenovia
intends to use the net proceeds from this Offering to fund commercialization activities for Mydcombi and clobetasol propionate, complete
the CHAPERONE pediatric myopia clinical study, and for working capital and general corporate purposes, which may include the repayment
of a portion of existing indebtedness.
The securities described above are being offered by Eyenovia pursuant
to its previously filed shelf registration statement on Form S-3, which was declared effective by the Securities and Exchange Commission
(the “SEC”) on December 23, 2021. The Offering may be made only by means of a prospectus supplement and accompanying
prospectus. A prospectus supplement relating to the Offering will be filed with the SEC and, once filed, will be available on the SEC’s
website at www.sec.gov. When available, copies of the prospectus supplement and the accompanying base prospectus relating to the Offering
may also be obtained by contacting Dawson James Securities, Inc.,101 North Federal Highway, Suite 600, Boca Raton, FL 33432
or by telephone at (561) 391-5555, or by email at investmentbanking@dawsonjames.com.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state
or jurisdiction.
About Eyenovia, Inc.
Eyenovia, Inc. is
an ophthalmic technology company commercializing Mydcombi™ (tropicamide and phenylephrine hydrochloride ophthalmic spray) 1%/2.5%
for mydriasis, Clobetasol Propionate Ophthalmic Suspension, 0.05% for postsurgical inflammation and pain, and developing the Optejet®
device for use both in connection with its own drug-device therapeutic product for pediatric progressive myopia as well as out-licensing
for additional indications. For more information, please visit Eyenovia.com.
Forward Looking Statements
Except for historical information, all the statements, expectations
and assumptions contained in this press release are forward-looking statements. Forward-looking statements include, but are not limited
to, statements that express our intentions, beliefs, expectations, strategies, predictions or any other statements relating to our future
activities or other future events or conditions, including those relating to the Offering, the closing of the Offering, the amount and
anticipated use of proceeds from the Offering, estimated market opportunities for our product candidates and platform technology, the
timing for sales growth of our approved products, and the outcome of the process to explore strategic alternatives to maximize shareholder
value. These statements are based on current expectations, estimates and projections about our business based, in part, on assumptions
made by management. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are
difficult to predict. Therefore, actual outcomes and results may, and in some cases are likely to, differ materially from what is expressed
or forecasted in the forward-looking statements due to numerous factors discussed from time to time in documents which we file with the
U.S. Securities and Exchange Commission.
In addition, such statements could be affected by risks and uncertainties
related to, among other things: risks of our clinical trials, including, but not limited to, the costs, design, initiation and enrollment,
timing, progress and results of such trials; the timing of, and our ability to submit applications for, obtaining and maintaining regulatory
approvals for our products and product candidates; the potential advantages of our products, product candidates and platform technology;
the rate and degree of market acceptance and clinical utility of our products and product candidates; our estimates regarding the potential
market opportunity for our products and product candidates; reliance on third parties to develop and commercialize our products and product
candidates; the ability of us and our partners to timely develop, implement and maintain manufacturing, commercialization and marketing
capabilities and strategies for our products and product candidates; intellectual property risks; changes in legal, regulatory, legislative
and geopolitical environments in the markets in which we operate and the impact of these changes on our ability to obtain regulatory approval
for our products and product candidates; and our competitive position.
Any forward-looking statements speak only as of the date on which they
are made, and except as may be required under applicable securities laws, Eyenovia does not undertake any obligation to update any forward-looking
statements.
Eyenovia Contact:
Eyenovia, Inc.
John Gandolfo
Chief Financial Officer
jgandolfo@eyenovia.com
Eyenovia Investor Contact:
Eric Ribner
LifeSci Advisors, LLC
eric@lifesciadvisors.com
(646) 751-4363
Eyenovia Media Contact:
Eyenovia, Inc.
Norbert Lowe
Vice President, Commercial Operations
nlowe@eyenovia.com
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Aug. 20, 2024 |
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Aug. 20, 2024
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Entity File Number |
001-38365
|
Entity Registrant Name |
EYENOVIA, INC.
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Entity Central Index Key |
0001682639
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Entity Tax Identification Number |
47-1178401
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Entity Incorporation, State or Country Code |
DE
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Entity Address, Address Line One |
295 Madison Avenue
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Entity Address, Address Line Two |
Suite 2400
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New York
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NY
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Common stock, $0.0001 par value
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NASDAQ
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