As filed with the Securities and Exchange
Commission on November 22, 2023
Registration No. 333-273370
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SENESTECH, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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2879 |
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20-2079805 |
(State or other jurisdiction of |
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(Primary Standard Industrial |
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(I.R.S. Employer |
incorporation or organization) |
|
Classification Code Number) |
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Identification Number) |
23460 N 19th Ave., Suite 110
Phoenix, Arizona 85027
(928) 779-4143
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Joel L. Fruendt
President and Chief Executive Officer
SenesTech, Inc.
23460 N 19th Ave., Suite 110
Phoenix, Arizona 85027
(928) 779-4143
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Brian H. Blaney, Esq.
Katherine A. Beck, Esq.
Stephanie T. Graffious, Esq.
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 800
Phoenix, Arizona 85016
(602) 445-8000 |
Rick A. Werner, Esq.
Jayun Koo, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
(212) 659-7300 |
Approximate date of commencement of proposed
sale to the public: As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box.
☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☐ |
Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
|
Emerging growth company |
☐ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
On August 18, 2023, our stockholders approved
a reverse stock split of our common stock, par value $0.001 per share, at a ratio of not less than 1-for-2 and not more than 1-for-12,
with the actual ratio to be determined by our board of directors (the “2023 Reverse Split”). On November 7, 2023, our board
of directors determined that the 2023 Reverse Split shall be completed as a 1-for-12 reverse stock split, reducing the aggregate number
of outstanding shares of common stock from 5,899,060 shares on a pre-reverse-split basis to a total of 492,293 shares outstanding on
a post-reverse split basis. Following such approval, we filed an amendment to its amended and restated certificate of incorporation with
the Secretary of State of the State of Delaware to effect the 2023 Reverse Split, with an effective time of 4:01 p.m. Eastern Time on
November 16, 2023. The number of authorized shares of our common stock remains unchanged at 100,000,000 shares after the 2023 Reverse
Split. As a result of the 2023 Reverse Split, every 12 shares of our common stock, either issued or outstanding, immediately prior to
the filing and effectiveness of our amendment to amended and restated certificate of incorporation filed with the Secretary of State
of the State of Delaware, was automatically combined and converted (without any further act) into one share of fully paid and nonassessable
share of common stock. No fractional shares were issued in connection with the 2023 Reverse Split. Each fractional share of common stock
was either (i) rounded up to the nearest whole share of common stock, if such shares of common stock were held directly; or (ii) rounded
down to the nearest whole share of common stock, if such shares were subject to an award granted under our 2018 Equity Incentive Plan,
in order to comply with the requirements of Sections 409A and 424 of the Internal Revenue Code of 1986 (and no consideration paid therefor).
The 2023 Reverse Split had the effect of reducing the percentage of common stock held by our existing stockholders on a post-offering
basis from 5.9% of our 100,000,000 authorized shares to 0.05% of our 100,000,000 authorized shares (assuming that none of the warrants
to be issued in connection with this offering are exercised).
All share numbers, option numbers, warrant
numbers, other derivative security numbers and exercise prices appearing in this registration statement have been adjusted to give effect
to the 2023 Reverse Split. Documents incorporated by reference into this registration statement that were filed prior to November 16,
2023 do not give effect to the 2023 Reverse Split.
The information in
this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and we
are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS |
SUBJECT
TO COMPLETION, DATED NOVEMBER 22, 2023 |
SenesTech, Inc.
Up to 2,020,202 Shares of Common Stock
and Accompanying Series D Warrants to Purchase up to 2,020,202 Shares of Common Stock and Series E Warrants to Purchase up to 2,020,202
Shares of Common Stock
Pre-Funded Warrants to Purchase up to 2,020,202
Shares of Common Stock and Accompanying Series D Warrants to Purchase up to 2,020,202 Shares of Common Stock and Series E Warrants to
Purchase up to 2,020,202 Shares of Common Stock
Up to 2,020,202 Shares of Common Stock Underlying
the Pre-Funded Warrants, up to 2,020,202 Shares of Common Stock Underlying the Series D Warrants and up to 2,020,202 Shares of Common
Stock Underlying the Series E Warrants
Placement Agent Warrants to Purchase
151,515 Shares of Common Stock
Up to 151,515 Shares of Common Stock Underlying
the Placement Agent Warrants
We are offering up to 2,020,202 shares
of our common stock, par value $0.001 per share (“Common Stock”), together with Series D warrants (the “Series D Warrants”)
to purchase up to 2,020,202 shares of our Common Stock and Series E warrants (the “Series E Warrants” and, together
with the Series D Warrants, the “Series Warrants”) to purchase up to 2,020,202 shares of our Common Stock at an assumed
combined public offering price of $2.97 per share of Common Stock and the accompanying Series D Warrant and Series E Warrant, which is
equal to the last reported sale price per share of our Common Stock on the Nasdaq Capital Market (“Nasdaq”) on November 20,
2023, (and the shares of Common Stock that are issuable from time to time upon exercise of the Series Warrants) pursuant to this prospectus.
Each share of Common Stock is being offered together with a Series D Warrant to purchase one share of Common Stock and a Series E Warrant
to purchase one share of Common Stock. The shares of Common Stock and Series Warrants will be issued separately but must be purchased
together. The Series Warrants have an exercise price of $[●] per share and will become exercisable on the effective date of stockholder
approval for the issuance of the shares upon exercise of the Series Warrants (or, if permitted by the applicable rules and regulations
of Nasdaq, upon payment by the holder of $0.125 per share in addition to the applicable exercise price). The Series D Warrants will expire
five years from the date of issuance, and the Series E Warrants will expire 18 months from the date of issuance.
We are also offering to those purchasers,
if any, whose purchase of our Common Stock in this offering would otherwise result in such purchaser, together with its affiliates and
certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common
Stock immediately following the consummation of this offering, the opportunity, in lieu of purchasing Common Stock, to purchase pre-funded
warrants to purchase up to 2,020,202 shares of our Common Stock (the “Pre-Funded Warrants”). Each Pre-Funded Warrant is being
issued together with the same Series Warrants described above being issued with each share of Common Stock. The purchase price of each
Pre-Funded Warrant will equal the price per share at which shares of our Common Stock are being sold to the public in this offering,
minus $0.0001, and the exercise price of each Pre-Funded Warrant will equal $0.0001 per share of Common Stock. Each Pre-Funded Warrant
will be exercisable upon issuance and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full. The Pre-Funded
Warrants and Series Warrants must be purchased together but are immediately separable and will be issued separately in this offering.
For each Pre-Funded Warrant and accompanying Series Warrants purchased in this offering in lieu of Common Stock, we will reduce the number
of shares of Common Stock being sold in the offering by one. Pursuant to this prospectus, we are also offering the shares of Common Stock
issuable upon the exercise of the Series Warrants and the Pre-Funded Warrants. This prospectus also relates to the offering of 151,515
Placement Agent Warrants (as such term is defined below) and 151,515 shares of Common Stock issuable upon exercise of the Placement Agent
Warrants.
Each Pre-Funded Warrant is exercisable for one
share of our Common Stock (subject to adjustment as provided for therein), provided that the holder will be prohibited from exercising
Pre-Funded Warrants for shares of our Common Stock if, as a result of such exercise, the holder, together with its affiliates, would own
more than 4.99% of the total number of shares of our Common Stock then issued and outstanding. However, any holder may increase such percentage
to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after
such notice to us.
We have engaged H.C. Wainwright & Co.,
LLC (the “Placement Agent”) to act as our exclusive placement agent in connection with the securities offered by this prospectus.
The Placement Agent has agreed to use its reasonable best efforts to arrange for the sale of the securities offered by this prospectus.
The Placement Agent is not purchasing or selling any of the securities we are offering, and the Placement Agent is not required to arrange
the purchase or sale of any specific number of securities or dollar amount. This offering will terminate on [●], 2023 unless the
offering is fully subscribed before that date or we decide to terminate the offering (which we may do at any time in our discretion)
prior to that date. There will only be one closing in connection with this offering. The combined public offering price per share (or
Pre-Funded Warrant) and Series Warrants will be fixed for the duration of this offering.
Our Common Stock is listed on Nasdaq under the
symbol “SNES.” There is no established public trading market for the Pre-Funded Warrants or Series Warrants, and we do not
expect a market to develop. In addition, we do not intend to apply for the listing of the Pre-Funded Warrants or Series Warrants on any
national securities exchange. Without an active trading market, the liquidity of the Series Warrants and the Pre-Funded Warrants will
be limited.
Effective
November 16, 2023, we amended our amended and restated certificate of incorporation to effect
a 1-for-12 reverse split of our issued and outstanding shares of our Common Stock. All share
and per share data in this prospectus gives effect to the reverse stock split. Documents
incorporated by reference into this prospectus that were filed prior to November 16, 2023
do not give effect to the reverse stock split.
On
November 20, 2023, the last reported sale price for our Common Stock on Nasdaq was $2.97
per share. The public offering price per share of Common Stock and/or any Pre-Funded Warrant,
together with the Series Warrants that accompany Common Stock or a Pre-Funded Warrant, will
be determined between us, the Placement Agent and the investors in this offering at the time
of pricing and may be at a discount to the current market price. Therefore, the recent market
price of $2.97 per share of Common Stock used throughout this prospectus as the assumed combined
public offering price per share of Common Stock or Pre-Funded Warrant, as applicable, and
accompanying Series Warrants may not be indicative of the actual combined public offering
price per share for our Common Stock or Pre-Funded Warrant, as applicable, and the accompanying
Series Warrants.
We
have agreed to pay the Placement Agent the Placement Agent fees set forth in the table below, which assumes that we sell all of the securities
offered by this prospectus. We will bear all costs associated with this offering. See “Plan of Distribution” on page 17 of
this prospectus for more information regarding these arrangements. There is no minimum number of shares of Common Stock or Pre-Funded
Warrants or minimum aggregate amount of proceeds that is a condition for this offering to close. We may sell fewer than all of the shares
of Common Stock and Pre-Funded Warrants (and accompanying Series Warrants) offered hereby, which may significantly reduce the amount
of proceeds received by us, and investors in this offering will not receive a refund if we do not sell all of the securities offered
hereby. There is no minimum number of securities or amount of proceeds required as a condition of closing of this offering. In addition,
since we will deliver the securities to be issued in this offering upon our receipt of investor funds, we have not established an escrow
account, trust or similar arrangement in connection with this offering. Because there is no escrow account, trust or similar arrangement
in connection with this offering and no minimum number of securities or amount of proceeds, investors could be in a position where they
have invested in us, but we have not raised sufficient proceeds in this offering to adequately fund the intended uses of the proceeds
as described in this prospectus. Further, any proceeds from the sale of securities offered by us will be available for our immediate
use despite uncertainty about whether we would be able to use such funds to effectively implement our business plan. See the section
entitled “Risk Factors” on page 6 for more information.
| |
Per Share and Series Warrants | | |
Per Pre-Funded Warrant and Series Warrants | | |
Total | |
Public offering price | |
$ | | | |
$ | | | |
$ | | |
Placement Agent fees(1) | |
$ | | | |
$ | | | |
$ | | |
Proceeds, before expenses, to us(2) | |
$ | | | |
$ | | | |
$ | | |
| (1) | We
have agreed to (i) pay the Placement Agent a cash fee equal to 7.5% of the aggregate gross
proceeds raised in this offering, (ii) pay the Placement Agent a management fee equal
to 1.0% of the aggregate gross proceeds raised in this offering, (iii) pay the Placement
Agent for non-accountable expenses in an amount up to $40,000 or 3% of the aggregate gross
proceeds of this offering, whichever is less, (iv) pay the Placement Agent for its reasonable
and documented out-of-pocket expenses, including legal fees of up to $100,000, and (v) pay
the Placement Agent for its closing costs, including clearing fees, in an amount of up to
$15,950 in connection with this offering. In addition, we have agreed to issue to the Placement
Agent or its designees as compensation in connection with this offering warrants (the “Placement
Agent Warrants”) to purchase a number of shares of Common Stock equal to 7.5% of the
shares of Common Stock sold in this offering (including the shares of Common Stock issuable
upon the exercise of the Pre-Funded Warrants), at an exercise price of $[●] per share,
which represents 125% of the combined public offering price per share and accompanying Series
Warrants. See “Plan of Distribution” for a description of the compensation to
be received by the Placement Agent. |
| (2) | We
estimate the total expenses of this offering payable by us, excluding the placement agent fees, will be approximately $195,000. Because
there is no minimum number of securities or amount of proceeds required as a condition to closing in this offering, the actual public
offering amount, Placement Agent fees, and proceeds to us, if any, are not presently determinable and may be substantially less than
the total maximum offering amounts set forth above. For more information, see “Plan of Distribution.” |
This prospectus, including such information that
is incorporated by reference, contains summaries of certain provisions contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All the summaries are qualified in their entirety by the actual documents. Copies
of some of the documents referred to herein have been filed or have been incorporated by reference as exhibits to the registration statement
of which this prospectus forms a part, and you may obtain copies of those documents as described in this prospectus under the heading
“Where You Can Find Additional Information.”
Investing in our securities involves a high
degree of risk. Please read “Risk Factors” beginning on page 6 of this prospectus as well as any other risk factors
and other information contained in any other document that is incorporated by reference herein.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense. The securities are not being offered in any jurisdiction where the offer is
not permitted.
Delivery of the Common Stock, Pre-Funded Warrants
and the Series Warrants offered hereby is expected to be made on or about [●], 2023, subject to satisfaction of certain customary
closing conditions.
H.C.
Wainwright & Co.
The date of this prospectus is
, 2023
TABLE OF CONTENTS
You should read this prospectus and the information
incorporated by reference in this prospectus and any applicable prospectus supplement before making an investment in our securities. Please
read “Where You Can Find Additional Information” for more information. We have not and the Placement Agent has not authorized
anyone to provide you with any information or to make any representation, other than those contained in this prospectus and the documents
incorporated by reference or any free writing prospectus we have prepared. We take no responsibility for, and provide no assurance as
to the reliability of, any other information that others may give you. The information contained in this prospectus or incorporated by
reference in this prospectus is accurate only as of its date, or the date of the applicable document incorporated by reference, regardless
of the time of delivery of this prospectus or of any sale of our Common Stock and Series Warrants. Our business, financial condition,
results of operations and prospects may have changed since that date.
For investors outside the United States: We have
not done anything that would permit possession or distribution of this prospectus in any jurisdiction where action for that purpose is
required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves
about, and observe any restrictions relating to, the offering of securities and the distribution of this prospectus outside the United
States.
about
this prospectus
The registration statement of which this prospectus
forms a part that we have filed with the Securities and Exchange Commission (the “SEC”) includes exhibits that provide more
detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC, together
with the additional information described under the headings “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference” before making your investment decision.
You should rely only on the information provided
in or incorporated by reference in this prospectus, in any prospectus supplement or in a related free writing prospectus, or documents
to which we otherwise refer you. We have not authorized anyone else to provide you with different information.
We have not authorized any dealer, agent or other
person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus
and any accompanying prospectus supplement or any related free writing prospectus. You must not rely upon any information or representation
not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement or any related free writing prospectus.
This prospectus and any accompanying prospectus supplement and any related free writing prospectus, if any, do not constitute an offer
to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus
and any accompanying prospectus supplement and any related free writing prospectus, if any, constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus and any accompanying prospectus supplement and any related free
writing prospectus, if any, is accurate on any date subsequent to the date set forth on the front of such document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though
this prospectus and any accompanying prospectus supplement and any related free writing prospectus is delivered or securities are sold
on a later date.
We have not done anything that would permit this
offering or possession or distribution of this prospectus or any free writing prospectus in any jurisdiction where action for that purpose
is required, other than in the United States. You are required to inform yourself about and to observe any restrictions relating as to
this offering and the distribution of this prospectus and any such free writing prospectus outside the United States.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
You should also read and consider the information
in the documents to which we have referred you under the caption “Where You Can Find Additional Information” in this prospectus.
In addition, this prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to
the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the
heading “Where You Can Find Additional Information.”
Unless
the context otherwise requires, references in this prospectus to “SenesTech,”
“we,” “us,” “our” and “our company” refer
to SenesTech, Inc., a Delaware corporation, and our subsidiaries. Our registered trademarks
currently used in the United States include SenesTech, our logo, including “Sound science.
Effective solutions.”, Contrapest, and Evolve. Solely for convenience, trademarks and
tradenames referred to in this prospectus may appear without the ® or ™ symbols,
but such references are not intended to indicate in any way that we will not assert, to the
fullest extent under applicable law, our rights, or that the applicable owner will not assert
its rights, to these trademarks and tradenames. We do not intend our use or display of other
companies’ trade names or trademarks to imply a relationship with, or endorsement or
sponsorship of us by, any other companies.
This prospectus contains and incorporates by reference
market data and industry statistics and forecasts that are based on our own internal estimates as well as independent industry publications
and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness
of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding
the market and industry data presented in this prospectus or the documents incorporated herein by reference, these estimates involve risks
and uncertainties and are subject to change based on various factors, including those discussed under the headings “Risk Factors”
in this prospectus, and under similar headings in the other documents that are incorporated herein by reference. Accordingly, investors
should not place undue reliance on this information.
FORWARD-LOOKING
STATEMENTS
The statements contained in this prospectus that
are not historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”). All statements other than statements of historical
facts contained or incorporated herein by reference in this prospectus, including statements regarding our future operating results, future
financial position, business strategy, objectives, goals, plans, prospects, markets, and plans and objectives for future operations, are
forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “anticipates,” “believes,”
“estimates,” “expects,” “intends,” “suggests,” “targets,” “contemplates,”
“projects,” “predicts,” “may,” “might,” “plan,” “would,” “should,”
“could,” “can,” “potential,” “continue,” “objective,” or the negative of those
terms, or similar expressions intended to identify forward-looking statements. However, not all forward-looking statements contain these
identifying words. Specific forward-looking statements in this prospectus include statements regarding:
| ● | our belief that ContraPest is unique in the pest control industry in attacking the reproductive systems
of both male and female rats; |
| ● | our belief that our field data shows ContraPest will result in a sustained reduction of the rat population; |
| ● | our belief that ContraPest is the first and only fertility control product designed to be non-lethal that
has been registered with the EPA for the management of rat populations; |
| ● | our expectation to continue to pursue regulatory approvals and amendments to the existing U.S. registration
for ContraPest and regulatory approvals for additional jurisdictions beyond the United States; |
| ● | our expectation that we will continue to seek to comply with completion of testing and certifications
required by the EPA and state registrations; |
| ● | our belief that we will continue to research and develop enhancements to ContraPest that align with our
target verticals and to develop other potential fertility control options for additional markets and species; |
| ● | our expectation regarding the number of shares outstanding after this offering; |
| ● | our expectation to continue to incur significant expenses and operating losses for the foreseeable future; |
| ● | our intention to use the net proceeds of this offering for general corporate purposes, which may include
research and development expenses, capital expenditures, working capital and general and administrative expenses, and potential acquisitions
of or investments in businesses, products and technologies that complement our business, although we have no present commitments or agreements
to make any such acquisitions or investments as of the date of this prospectus; |
| ● | pending the intended uses described herein, our intention to invest the net proceeds of this offering
in short-term, investment grade, interest-bearing securities; and |
| ● | our belief that we do not anticipate paying any cash dividends to stockholders in the foreseeable future. |
These forward-looking statements are not guarantees
of future performance and involve known and unknown risks, uncertainties and situations that are difficult to predict and that may cause
our own, or our industry’s, actual results to be materially different from the future results that are expressed or implied by these
statements. Accordingly, actual results may differ materially from those anticipated or expressed in such statements as a result of a
variety of factors, including those discussed in Item 1A-“Risk Factors” of Part I of our Annual Report on Form 10-K, for the
year ended December 31, 2022, filed with the SEC on March 17, 2023, and those contained from time to time in our other filings with the
SEC. A number of factors could cause our actual results to differ materially from those indicated by the forward-looking statements. Such
factors include, among others, the following:
| ● | the successful commercialization of our products; |
| ● | market acceptance of our products; |
| ● | our financial performance, including our ability to fund operations; |
| ● | our ability to regain and maintain
compliance with Nasdaq’s continued listing requirements; and |
| ● | regulatory approval and regulation of our products and other factors and risks identified from time to
time in our filings with the SEC, including this prospectus. |
All forward-looking statements included herein
are based on information available to us as of the date hereof and speak only as of such date. Except as required by law, we undertake
no obligation to update any forward-looking statements to reflect events or circumstances after the date of such statements. The forward-looking
statements contained in or incorporated by reference into this prospectus reflect our views as of the date of this prospectus about future
events and are subject to risks, uncertainties, assumptions and changes in circumstances that may cause our actual results, performance
or achievements to differ significantly from those expressed or implied in any forward-looking statement. Although we believe that the
expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future events, results, performance or achievements.
PROSPECTUS
SUMMARY
This summary highlights information contained
in other parts of this prospectus or incorporated by reference into this prospectus from our filings with the SEC, as described later
in the prospectus. Because it is only a summary, it does not contain all of the information that you should consider before investing
in our securities and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing
elsewhere in this prospectus, including the information incorporated by reference in this prospectus. You should read the entire prospectus
and the information incorporated by reference herein carefully, including the sections titled “Risk Factors,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” our audited financial statements and the related notes,
which are incorporated herein by reference from our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC
on March 17, 2023, and our unaudited financial statements and the related notes, which are incorporated herein by reference from our
Quarterly Report on Form 10-Q for the three month period ended March 31, 2023, filed with the SEC on May 11, 2023, our Quarterly Report
on Form 10-Q for the three and six month periods ended June 30, 2023, filed with the SEC on August 11, 2023, and our Quarterly Report
on Form 10-Q for the three and nine month periods ended September 30, 2023, filed with the SEC on November 9, 2023. Please read “Where
You Can Find Additional Information” on page 20 of this prospectus.
Our Company
Overview
We have developed and are commercializing
a global, proprietary technology for managing animal pest populations, initially rat populations, through fertility control. Although
there are myriad tools available to control rat populations, most rely on some form of lethal method to achieve effectiveness. Each of
these solutions is inherently limited by rat species’ resilience and survival mechanisms as well as their extraordinary rate of
reproduction. ContraPest®, our initial product, is unique in the pest control industry in affecting the reproductive systems
of both male and female rats, which our field data shows will result in a sustained reduction of the rat population.
Rats have plagued humanity throughout history.
They pose significant threats to the health and food security of many communities. In addition, rodents cause significant product loss
and damage through consumption and contamination. Rats also cause significant damage to critical infrastructure by burrowing beneath foundations
and gnawing on electrical wiring, insulation, fire proofing systems, electronics and computer equipment.
The most prevalent solution to rat infestations
is the use of increasingly powerful rodenticides. Although these solutions provide short term results, there are growing concerns about
secondary exposure and bioaccumulation of rodenticides in the environment, about the development of resistance over time, as well as concerns
about rodenticides that have no antidotes. The pest management industry and pest management professionals (“PMPs”) are being
asked by their customers and their communities for new solutions that are both effective and less toxic. Our goal is to provide customers
with not only a highly effective solution to combat their most difficult rat problems, but also offer a non-lethal option to serve customers
that are looking to decrease or remove the amount of rodenticide used in their pest control programs.
ContraPest is a liquid bait containing the active
ingredients 4-vinylcyclohexene diepoxide (“VCD”) and triptolide, a botanically derived compound. ContraPest limits reproduction
of male and female rats beginning with the first breeding cycle following consumption. ContraPest is currently being marketed for use
in controlling Norway and roof rat populations.
We began the registration process with the United
States Environmental Protection Agency (the “EPA”) for ContraPest on August 23, 2015. On August 2, 2016, the EPA granted an
unconditional registration for ContraPest as a Restricted Use Product (“RUP”), due to the need for applicator expertise for
deployment. On October 18, 2018, the EPA approved the removal of the RUP designation. In addition to the EPA registration of ContraPest
in the United States, ContraPest must obtain registration from the various state regulatory agencies prior to selling in each state. We
have received registration for ContraPest in all 50 states and the District of Columbia, 49 of which have approved the removal of the
RUP designation.
We believe ContraPest is the first and only fertility
control product designed to be non-lethal that has been registered with the EPA for the management of rat populations. In case studies,
the addition of ContraPest to an integrated pest management system has improved the efficacy of the program up to 90% or more. ContraPest
is marketed to PMPs for incorporation into their services, as well as to end users who wish to perform their own pest management. We have
established a field sales force of six individuals who are arranged geographically as well as an e-commerce platform for direct sales
to consumers.
In the first quarter of 2022, we received approval
for and began marketing an additional dispenser format for ContraPest, the Elevate® Bait System with ContraPest. This system
provides an additional delivery method particularly appropriate for roof rat populations or any rat infestations that manifest above ground.
We expect to continue to pursue regulatory approvals
and amendments to the existing U.S. registration for ContraPest and regulatory approvals for additional jurisdictions beyond the United
States. On April 1, 2023 and May 18, 2023, we signed distribution agreements for the commercialization of ContraPest in the Maldives and
South Africa. In certain cases, our EPA and state registrations require completion of testing and certifications even though we have received
approval for the product or its labelling. We continue to seek to comply with these requirements.
We also continue to research and develop enhancements
to ContraPest that align with our target verticals and to develop other potential fertility control options for additional markets and
species. In November 2023, we launched our latest product, Evolve™, a soft bait containing the active ingredient cottonseed oil.
Evolve limits reproduction of male and female rats after one to two breeding cycles following consumption. Evolve is being developed
and marketed for use in controlling rat populations as a minimum risk pesticide under Section 25(b) of the U.S. Environmental Protection
Agency Federal Insecticide, Fungicide, and Rodenticide Act. We must obtain registration from the various state regulatory agencies that
do not accept the federal exemption. To date, we are authorized to sell Evolve in 15 states.
Our intellectual property portfolio supporting
ContraPest consists of nine international patent filings (in the United States, Europe, Canada, Brazil, Russia, Japan, Mexico, South
Korea and Australia) addressing the ContraPest compound. Claims directed toward the compound include composition-of-matter involving
a diterpenoid epoxide or salts thereof in combination with an organic diepoxide and use claims for inducing follicle depletion and for
reducing the reproductive capability of a mammalian animal or non-human mammalian population. Issued claims will have a patent term extending
to 2033 or longer based on patent term determinations in each of the filing countries. The novelty of ContraPest extends to its method
of field distribution and has required innovation to perfect the dosing of our product to rodents. We recently filed and received approval
for a U.S. patent application covering our liquid delivery system, which is used in our EVO bait station. The patent will expire in 2038.
We also recently filed a U.S. patent application covering our new soft bait product, Evolve.
For
a complete description of our business, financial condition, results of operations and other
important information, please read our filings with the SEC that are incorporated by reference
in this prospectus, including our Annual Report on Form 10-K for the year ended December
31, 2022; our Quarterly Reports on Form 10-Q for the periods ended March 31, 2023, June 30,
2023, and September 30, 2023; and our Current Reports on Form 8-K. For instructions on how
to find copies of these documents, please read “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference.”
August 2023 Warrant Exercise and Issuance
On August 21, 2023, we entered into an inducement
offer letter agreement (the “Inducement Letter”) with a certain holder (the “Holder”) of certain of our existing
warrants to purchase up to (i) 6,453 shares of our common stock issued on October 26, 2020 and subsequently amended on November 16, 2022,
at an exercise price of $37.98 per share, as amended (the “October 2020 Warrants”), and (ii) 238,095 shares of common stock
issued on November 18, 2022, at an exercise price of $37.98 per share (the “November 2022 Warrants” and together with the
October 2020 Warrants, the “Existing Warrants). Pursuant to the Inducement Letter, the Holder agreed to exercise for cash its Existing
Warrants to purchase an aggregate of 244,548 shares of our common stock at a reduced exercise price of $8.6424 per share in consideration
of our agreement to issue new common stock purchase warrants (the “New Warrants”), as described below, to purchase up to
an aggregate of 489,097 shares of our common stock (the “New Warrant Shares”).
Our aggregate gross proceeds from the exercise
of the Existing Warrants by the Holder were approximately $2.1 million, before deducting placement agent fees and other offering expenses
payable by us. The transactions contemplated pursuant to the Inducement Letter closed on August 24, 2023. We used the net proceeds from
the transaction for general corporate purposes.
In connection with the transaction, we also
issued to H.C. Wainwright & Co, LLC, as the exclusive placement agent in connection with the transaction, or to its designees, as
part of the placement agent’s compensation, warrants to purchase up to 12,229 shares of common stock, which have the same terms
as the New Warrants except the placement agent warrants have an exercise price equal to $10.8036 per share.
Nasdaq Listing
Minimum Public Float Requirement
On November 20, 2023, we received a letter
from the listing qualifications staff (the “Staff”) of Nasdaq providing notification that we no longer meet the minimum of
500,000 publicly held shares requirement pursuant to Nasdaq Listing Rule 5550(a)(4). In accordance with Nasdaq rules, we have until January
4, 2024 to provide the Staff with a specific plan to achieve and sustain compliance with all listing requirements of Nasdaq, including
the time frame for completion of this plan. After reviewing our plan, Nasdaq will provide written notice of their decision. If Nasdaq
does not accept our plan, we will have the opportunity to appeal their decision to a hearings panel.
Minimum Bid Price Requirement
As previously disclosed, on August 25, 2023,
we received a letter from the Staff of Nasdaq providing notification that the bid price for our Common Stock had closed below $1.00 per
share for the previous 30 consecutive business days and our Common Stock no longer met the minimum bid price requirement for continued
listing under Nasdaq Listing Rule 5550(a)(2). We were provided a period of 180 calendar days, or until February 21, 2024, in which to
regain compliance with Nasdaq Listing Rule 5550(a)(2). To regain compliance, the closing bid price of our Common Stock must be $1.00
per share or more for a minimum of 10 consecutive business days at any time before February 21, 2024.
If we do not regain compliance with Nasdaq
Listing Rule 5550(a)(2) by February 21, 2024, we may be eligible for an additional 180 calendar day compliance period. To qualify, we
would need to meet the continued listing requirement for market value of publicly held shares and all other initial listing standards
for the Nasdaq Capital Market, with the exception of the minimum bid price requirement, and would need to provide written notice of our
intention to cure the deficiency during the second compliance period, by effecting a reverse stock split, if necessary. However, if it
appears to the Staff that we will not be able to cure the deficiency, or if we are otherwise not eligible, Nasdaq would notify us that
our securities would be subject to delisting. In the event of such notification, we may appeal the Staff’s determination to delist
our securities, but there can be no assurance the Staff would grant our request for continued listing.
2023 Reverse Stock Split
On August 18, 2023, our stockholders approved
a reverse stock split of our Common Stock at a ratio of not less than 1-for-2 and not more than 1-for-12, with the actual ratio to be
determined by our board of directors (the “2023 Reverse Split”). On November 7, 2023, the Reverse Split Committee of our
board of directors approved a final split ratio of 1-for-12. Following such approval, we filed an amendment to our amended and restated
certificate of incorporation with the Secretary of State of the State of Delaware to effect the 2023 Reverse Split, with an effective
time of 4:01 p.m., Eastern Time on November 16, 2023. The 2023 Reverse Split had the effect of, reducing the aggregate number of outstanding
shares of common stock from 5,899,060 shares on a pre-reverse-split basis to a total of 492,293 shares outstanding on a post-reverse
split basis. The number of authorized shares of our Common Stock will remain unchanged at 100,000,000 shares after the 2023 Reverse Split.
Unless otherwise noted, the share numbers,
option numbers, warrant numbers, other derivative security numbers and exercise prices appearing in this prospectus, including those
as of dates prior to the completion of the 2023 Reverse Split, have been adjusted to give effect to the 2023 Reverse Split. Documents
incorporated by reference into the registration statement of which this prospectus forms a part that were filed prior to November 16,
2023 do not give effect to the 2023 Reverse Split.
Corporate and Other Information
We were incorporated in Nevada in July 2004 and
reincorporated in Delaware in November 2015. Our principal executive offices are located at 23460 N 19th Ave., Suite 110, Phoenix, AZ
85027, and our telephone number is (928) 779-4143. Our corporate website address is www.senestech.com. The information contained
on or accessible through our website is not a part of this prospectus and should not be relied upon in connection with making an investment
decision.
SUMMARY
OF THE OFFERING
Common Stock to be Offered |
|
Up to 2,020,202 shares of Common
Stock on a “best efforts” basis. |
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Description of Series Warrants |
|
We are issuing to purchasers of shares of our Common Stock and/or
our Pre-Funded Warrants in this offering a Series D Warrant to purchase up to one share of our Common Stock and a Series E Warrant to
purchase up to one share of our Common Stock for each share and/or Pre-Funded Warrant purchased in this offering for a combined public
offering price of $[●] per share and accompanying Series Warrants (less $0.0001 per Pre-Funded Warrant). The Series D Warrants
and the Series E Warrants are referred to herein together as the “Series Warrants.” Because a Series D Warrant and a Series
E Warrant, each to purchase share(s) of our Common Stock, are being sold together in this offering with each share of Common Stock and,
in the alternative, each Pre-Funded Warrant to purchase one share of Common Stock, the number of Series Warrants sold in this offering
will not change as a result of a change in the mix of the shares of our Common Stock and Pre-Funded Warrants sold. The Series Warrants
have an exercise price of $[●] per share and will become exercisable on the effective date of stockholder approval for the issuance
of the shares upon exercise of the Series Warrants (or, if permitted by the applicable rules and regulations of Nasdaq, upon payment
by the holder of $0.125 per share in addition to the applicable exercise price). The Series D Warrants will expire five years from the
date of issuance, and the Series E Warrants will expire 18 months from the date of issuance. The shares of Common Stock and Pre-Funded
Warrants, and the accompanying Series Warrants, as the case may be, can only be purchased together in this offering but will be issued
separately and will be immediately separable upon issuance. See “Description of Securities We Are Offering — Series Warrants.”
This prospectus also relates to the offering of the shares of Common Stock issuable upon exercise of the Series Warrants and the Placement
Agent Warrants. |
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|
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Description of Pre-Funded Warrants |
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We are also offering to each purchaser whose purchase of shares
of Common Stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties,
beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock immediately following
the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, Pre-Funded Warrants to purchase up to
2,020,202 shares of our Common Stock, in lieu of shares of Common Stock that would otherwise result in the purchaser’s beneficial
ownership exceeding 4.99% of our outstanding Common Stock. Subject to limited exceptions, a holder of Pre-Funded Warrants will not
have the right to exercise any portion of its Pre-Funded Warrants if the holder, together with its affiliates, would beneficially
own in excess of 4.99% (or, at the election of the holder, 9.99%) of the number of shares of Common Stock outstanding immediately
after giving effect to such exercise. Each Pre-Funded Warrant will be exercisable for one share of our Common Stock. The purchase
price of each Pre-Funded Warrant will equal the price per share at which the shares of Common Stock are being sold to the public
in this offering, minus $0.0001, and the exercise price of each Pre-Funded Warrant will be $0.0001 per share. This offering also
relates to the shares of Common Stock issuable upon exercise of any Pre-Funded Warrants sold in this offering. For each Pre-Funded
Warrant we sell, the number of shares of Common Stock we are offering will be decreased on a one-for-one basis. |
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Common Stock Outstanding Prior to This Offering |
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492,293 shares. |
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Common Stock to be Outstanding After This Offering |
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2,512,495 shares (assuming no sale of any Pre-Funded Warrants and
assuming none of the Series Warrants issued in this offering or Placement Agent Warrants issued to the Placement Agent or its designees
as compensation in connection with this offering are exercised). |
Use of Proceeds |
|
We estimate that the net proceeds
to us from this offering will be approximately $5.1 million, after deducting the Placement Agent fees and estimated offering expenses
payable by us and assuming no exercise of the Series Warrants. We intend to use the net proceeds from the sale of the securities
for general corporate purposes, which may include research and development expenses, capital expenditures, working capital and general
and administrative expenses, and potential acquisitions of or investments in businesses, products and technologies that complement
our business, although we have no present commitments or agreements to make any such acquisitions or investments as of the date of
this prospectus. Pending these uses, we intend to invest the funds in short-term, investment grade, interest-bearing securities.
It is possible that, pending their use, we may invest the net proceeds in a way that does not yield a favorable, or any, return for
us. See “Use of Proceeds.” |
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Risk Factors |
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You should carefully read and consider the information set forth under “Risk Factors” in this prospectus on page 6 and under similar headings in the documents incorporated by reference herein before deciding to invest in our securities. |
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Lock-Up Agreements |
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We and all of our executive officers and directors will enter into lock-up agreements with the Placement Agent. Under these agreements, we and each of these persons may not, without the prior written approval of the Placement Agent, offer, sell, contract to sell or otherwise dispose of or hedge Common Stock or securities convertible into or exchangeable for Common Stock, subject to certain exceptions. The restrictions contained in these agreements will be in effect for a period of 90 days after the date of the closing of this offering. For more information, see “Plan of Distribution.” |
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Market for Common Stock |
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Our Common Stock is listed on Nasdaq under the symbol “SNES.” |
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Listing of Series Warrants |
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We do not intend to list the Pre-Funded Warrants or the Series Warrants
on any securities exchange or nationally recognized trading system, including on Nasdaq. Without a trading market, the liquidity
of the Pre-Funded Warrants and the Series Warrants will be extremely limited. |
The
discussion above is based on 492,293 shares of our Common Stock outstanding as of November 20, 2023, which excludes the following as
of such date:
|
● |
37,357 shares of Common Stock issuable upon the
exercise of outstanding options with a weighted average exercise price of $122.51 per share; |
|
● |
596,508 shares of Common Stock issuable upon the
exercise of outstanding warrants with a weighted average exercise price of $22.69 per share; |
|
● |
41,392 shares of Common Stock available for grant
under our 2018 Equity Incentive Plan; |
|
● |
4,040,404 shares of our Common Stock issuable
upon the exercise of Series Warrants to be issued in this offering; and |
|
● |
151,515 shares of Common Stock issuable upon the
exercise of the Placement Agent Warrants to be issued to the Placement Agent or its designees as compensation in connection with
this offering and pursuant to this prospectus. |
The discussion above assumes no sale of Pre-Funded
Warrants, which, if sold, would reduce the number of shares of Common Stock that we are offering on a one-for-one basis.
RISK
FACTORS
Investing in our securities, including
our Common Stock, our Pre-Funded Warrants and our Series Warrants, involves a number of risks. You should not invest unless you are able
to bear the complete loss of your investment. You should carefully consider the risks described below and discussed under the section
entitled “Risk Factors” in our most recent Annual Report on Form 10-K, which is incorporated herein by reference, together
with other information in this prospectus and the information and documents incorporated by reference in this prospectus, including our
future reports on Form 10-K, Form 10-Q and Form 8-K. The risks and uncertainties we have described below and under the section entitled
“Risk Factors” in our most recent Annual Report on Form 10-K incorporated herein by reference are not the only risks and
uncertainties we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair
our business operations. If any of the following risks actually occur, our business could be harmed. In such case, the trading price
of our Common Stock could decline and investors could lose all or a part of the money paid to buy our securities. Our actual results
could differ materially from those anticipated in these forward-looking statements as a result of these and other factors.
See also the statements contained under the
heading “Forward-Looking Statements.”
Risks Related to the 2023 Reverse Split
and our Common Stock
If we are unable to continue as a going
concern, our securities will have little or no value.
We have incurred operating losses since our
inception, and we expect to continue to incur significant expenses and operating losses for the foreseeable future. Based upon our current
operating plan, we expect that cash and cash equivalents at September 30, 2023, in combination with anticipated revenue and any additional
sales of our equity securities, will be sufficient to fund our current operations for at least the next three months. Our financial statements
as of December 31, 2022 and 2021 have been prepared under the assumption that we will continue as a going concern. Our independent registered
public accounting firm included in its opinion for the years ended December 31, 2022, and 2021 an explanatory paragraph referring
to our net loss from operations and net capital deficiency and expressing substantial doubt in our ability to continue as a going concern
without additional capital becoming available. If we encounter continued issues or delays in the commercialization of our fertility control
products or greater than anticipated expenses, our prior losses and expected future losses could have an adverse effect on our financial
condition and negatively impact our ability to fund continued operations, obtain additional financing in the future and continue as a
going concern. There are no assurances that such financing, if necessary, will be available to us at all or will be available in sufficient
amounts or on reasonable terms. Our financial statements do not include any adjustments that may result from the outcome of this uncertainty.
If we are unable to generate additional funds in the future through financings, sales of our products, licensing fees, royalty payments
or from other sources or transactions, we will exhaust our resources and will be unable to continue operations. If we cannot continue
as a going concern, our stockholders would likely lose most or all of their investment in us.
We may not be able to comply with all
applicable listing requirements or standards of the Nasdaq Capital Market, and Nasdaq could delist our Common Stock.
Our Common Stock is listed on Nasdaq. In order
to maintain that listing, we must satisfy minimum financial and other continued listing requirements and standards. Previously, on September
26, 2018, March 20, 2019, February 20, 2020, March 2, 2022, and, most recently, on August 25, 2023, we received a letter from the listing
qualifications staff of Nasdaq providing notification that the bid price for our Common Stock had closed below $1.00 per share for the
previous 30 consecutive business days and our Common Stock no longer met the minimum bid price requirement for continued listing under
Nasdaq Listing Rule 5550(a)(2). In each case, in accordance with Nasdaq Listing Rule 5810(c)(3) (A), we had an initial period of 180
calendar days to regain compliance. To regain compliance, the closing bid price of our Common Stock had to be $1.00 per share or more
for a minimum of 10 consecutive business days at any time before the expiration of the initial compliance period.
In
the event that we are unable to regain compliance with Rule 5550(a)(2) during the initial compliance period, Nasdaq rules provide that
we may be eligible for an additional 180 calendar day compliance period. To qualify, we need to meet the continued listing requirement
for market value of publicly held shares and all other initial listing standards for Nasdaq, with the exception of the minimum bid price
requirement, and to provide written notice of our intention to cure the deficiency during the second compliance period, by effecting
a reverse stock split, if necessary. On August 18, 2023, our stockholders approved a reverse stock split of our Common Stock at a ratio
of not less than 1-for-2 and not more than 1-for-12, with the actual ratio to be determined by our board of directors. On November 7,
2023, the Reverse Split Committee of our board of directors approved a final split ratio of 1-for-12. Following such approval, we filed
an amendment to our amended and restated certificate of incorporation with the Secretary of State of the State of Delaware to effect
the reverse stock split, with an effective time of 4:01 p.m., Eastern Time on November 16, 2023. However, even if a stock split
has a positive effect on the market price for the common stock immediately following a reverse stock split, performance of our business
and financial results, general economic conditions and the market perception of our business, and other adverse factors which may not
be in our control, could lead to a decrease in the price of our common stock following the reverse stock split.
In addition, on November 20, 2023, we received
a letter from the Staff of Nasdaq providing notification that we no longer meet the minimum of 500,000 publicly held shares requirement
pursuant to Nasdaq Listing Rule 5550(a)(4). In accordance with Nasdaq rules, we have until January 4, 2024 to provide the Staff with
a specific plan to achieve and sustain compliance with all listing requirements of Nasdaq, including the time frame for completion of
this plan. After reviewing our plan, Nasdaq will provide written notice of their decision. If Nasdaq does not accept our plan, we will
have the opportunity to appeal their decision to a hearings panel.
In the event that we are unable to establish
compliance, or again become non-compliant, with Rule 5550(a)(2) and/or Rule 5550(a)(4) and cannot re-establish compliance within the
required timeframes, our Common Stock could be delisted from Nasdaq, which could have a material adverse effect on our financial condition
and which would cause the value of our Common Stock to decline. If our Common Stock is not eligible for listing or quotation on another
market or exchange, trading of our Common Stock could be conducted in the over-the-counter market or on an electronic bulletin board
established for unlisted securities such as the Pink Open Market operated by the OTC Markets Group, Inc. In such event, it would become
more difficult to dispose of, or obtain accurate price quotations for, our Common Stock, and there would likely be a reduction in our
coverage by security analysts and the news media, which could cause the price of our Common Stock to decline further. In addition, it
may be difficult for us to raise additional capital if we are not listed on a national securities exchange.
Our reverse stock splits may decrease the
liquidity of the shares of our Common Stock.
On
August 18, 2023, our stockholders approved a reverse stock split of our Common Stock at a
ratio of not less than 1-for-2 and not more than 1-for-12, with the actual ratio to be determined
by our board of directors. On November 7, 2023, the Reverse Split Committee of our board
of directors approved a final split ratio of 1-for-12 to regain compliance with the Nasdaq
minimum bid price requirement. The liquidity of the shares of our Common Stock may be affected
adversely by the reverse stock splits given the reduced number of shares that are outstanding
following the reverse stock splits. In addition, the reverse stock splits increase the number
of stockholders who own odd lots (less than 100 shares) of our Common Stock, creating the
potential for such stockholders to experience an increase in the cost of selling their shares
and greater difficulty effecting such sales.
Following a reverse stock split, the resulting
market price of our Common Stock may not attract new investors, including institutional investors, and may not satisfy the investing requirements
of those investors. Consequently, the trading liquidity of our Common Stock may not improve.
Although
we believe that a higher market price of our Common Stock may help generate greater or broader
investor interest, there can be no assurance that a reverse stock split, including the 2023
Reverse Split, will result in a share price that will attract new investors, including institutional
investors. In addition, there can be no assurance that the market price of our Common Stock
will satisfy the investing requirements of those investors. As a result, the trading liquidity
of our Common Stock may not necessarily improve. The primary intent for the 2023 Reverse
Split was that the anticipated increase in the price of our Common Stock immediately following
and resulting from a reverse stock split due to the reduction in the number of issued and
outstanding shares of Common Stock would help us meet the minimum bid price requirement pursuant
to Nasdaq Listing Rules. It cannot be assured that a reverse stock split, including the 2023
Reverse Split, will result in any sustained proportionate increase in the market price of
our Common Stock, which is dependent upon many factors, including our business and financial
performance, general market conditions, and prospects for future success, which are unrelated
to the number of shares of our Common Stock outstanding. It is not uncommon for the market
price of a company’s common stock to decline in the period following a reverse stock
split.
Our
share price is volatile, which could subject us to securities class action litigation, and your investment in our securities could decline
in value.
Our
stock could be subject to wide fluctuation in response to many risk factors listed in this section, and others beyond our control, including
the following:
| ● | market
acceptance and commercialization of our products; |
| ● | our
being able to timely demonstrate achievement of milestones, including those related to revenue
generation, cost control, cost effective source supply and regulatory approvals; |
| ● | our
ability to regain compliance with Nasdaq’s Listing Rules and remain listed on Nasdaq; |
| ● | results
and timing of our submissions with the regulatory authorities; |
| ● | failure
or discontinuation of any of our development programs; |
| ● | regulatory
developments or enforcements in the United States and non-U.S. countries with respect to
our products or our competitors’ products; |
| ● | failure
to achieve pricing acceptable to the market; |
| ● | regulatory
actions with respect to our products or our competitors’ products; |
| ● | actual
or anticipated fluctuations in our financial condition and operating results or our continuing
to sustain operating losses; |
| ● | competition
from existing products or new products that may emerge; |
| ● | announcements
by us or our competitors of significant acquisitions, strategic arrangements, joint ventures,
collaborations or capital commitments; |
| ● | issuance
of new or updated research or reports by securities analysts; |
| ● | announcement
or expectation of additional financing efforts, particularly if our cash available for operations
significantly decreases or if the financing efforts result in a price adjustment to certain
outstanding warrants; |
| ● | fluctuations
in the valuation of companies perceived by investors to be comparable to us; |
| ● | share
price and volume fluctuations attributable to inconsistent trading volume levels of our shares; |
| ● | disputes
or other developments related to proprietary rights, including patents, litigation matters
and our ability to obtain patent protection for our technologies; |
| ● | entry
by us into any material litigation or other proceedings; |
| ● | sales
of our Common Stock by us, our insiders or our other stockholders; |
| ● | exercise
of outstanding warrants; |
| ● | market
conditions for equity securities; and |
| ● | general
economic and market conditions unrelated to our performance. |
Furthermore,
the capital markets can experience extreme price and volume fluctuations that may affect the market prices of equity securities of many
companies. These broad market and industry fluctuations, as well as general economic, political and market conditions such as recessions,
interest rate changes or international currency fluctuations, may negatively impact the market price of shares of our Common Stock. In
addition, such fluctuations could subject us to securities class action litigation, which could result in substantial costs and divert
our management’s attention from other business concerns, which could seriously harm our business. You may not realize any return
on your investment in us and may lose some or all of your investment.
Risks Related to this Offering
Management will have broad discretion as
to the use of proceeds from this offering and we may use the net proceeds in ways with which you may disagree.
We intend to use the net proceeds of this offering
for general corporate purposes, which may include research and development expenses, capital expenditures, working capital and general
and administrative expenses, and potential acquisitions of or investments in businesses, products and technologies that complement our
business, although we have no present commitments or agreements to make any such acquisitions or investments as of the date of this prospectus.
Our management will have broad discretion in the application of the net proceeds from this offering and could spend the proceeds in ways
that do not improve our results of operations or enhance the value of our Common Stock. Accordingly, you will be relying on the judgment
of our management on the use of net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. Our failure to apply these funds effectively could have a material adverse effect on our business
and cause the price of our Common Stock to decline.
Pending these uses, we intend to invest the funds
in short-term, investment grade, interest-bearing securities. It is possible that, pending their use, we may invest the net proceeds in
a way that does not yield a favorable, or any, return for us.
The public offering price will be set by
our board of directors and does not necessarily indicate the actual or market value of our Common Stock.
Our
board of directors will approve the public offering price and other terms of this offering
after considering, among other things: the number of shares authorized in our amended and
restated certificate of incorporation; the current market price of our Common Stock; trading
prices of our Common Stock over time; the volatility of our Common Stock; our current financial
condition and the prospects for our future cash flows; the availability of and likely cost
of capital of other potential sources of capital; the characteristics of interested investors
and market and economic conditions at the time of the offering. The offering price is not
intended to bear any relationship to the book value of our assets or our past operations,
cash flows, losses, financial condition, net worth or any other established criteria used
to value securities. The public offering price may not be indicative of the fair value of
the Common Stock.
Purchasers who purchase our securities in
this offering pursuant to a securities purchase agreement may have rights not available to purchasers without the benefit of a securities
purchase agreement.
In addition to rights and remedies available to
all purchasers in this offering under federal securities and state law, the purchasers that enter into a securities purchase agreement
will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract provides those
investors with the means to enforce the covenants uniquely available to them under the securities purchase agreement, including the following:
(i) timely delivery of shares; (ii) agreement to not enter into variable rate financings for one year from closing, subject to certain
exceptions; (iii) agreement to not enter into any financings for 90 days from closing; and (iv) indemnification for breach of contract.
You may experience future dilution as
a result of future equity offerings and other issuances of our shares of Common Stock and other securities. In addition, this offering
and future equity offerings and other issuances of our shares of Common Stock or other securities may adversely affect our shares of
Common Stock.
In
order to raise additional capital, we may in the future offer additional shares of Common
Stock or other securities convertible into or exchangeable for shares of Common Stock at
prices that may be higher or lower than the price per share in this offering. We cannot assure
you that we will be able to sell shares or other securities in any other offering at a price
per share that is equal to or greater than the price per share paid by investors in this
offering, and investors purchasing shares or other securities in the future could have rights
superior to our existing stockholders.
Additionally, we are generally not
restricted from issuing additional securities, including shares of our Common Stock, securities that are convertible into or
exchangeable for, or that represent the right to receive, shares of our Common Stock or substantially similar securities. The
issuance of additional shares of our Common Stock in future offerings could be dilutive to stockholders, including investors in this
offering, if they do not invest in future offerings. Moreover, to the extent that we issue options or warrants to purchase, or
securities convertible into or exchangeable for, shares of our Common Stock in the future and those options, warrants or other
securities are exercised, converted or exchanged, stockholders may experience further dilution. In addition, the sale of shares in
this offering and any future sales of a substantial number of shares of Common Stock in the public market, or the perception that
such sales may occur, could adversely affect the price of our shares of Common Stock. We cannot predict the effect, if any, that
market sales of those shares of Common Stock or the availability of those shares of Common Stock for sale will have on the market
price of our shares of Common Stock.
There is no public market for the Pre-Funded
Warrants or the Series Warrants being offered in this offering.
There is no established public trading market
for the Pre-Funded Warrants or the Series Warrants being offered in this offering, and we do not expect a market to develop. In addition,
we do not intend to apply to list the Pre-Funded Warrants or the Series Warrants on any securities exchange or nationally recognized trading
system, including Nasdaq. Without an active market, the liquidity of the Pre-Funded Warrants or the Series Warrants will be limited.
Holders of Pre-Funded Warrants or Series
Warrants purchased in this offering will have no rights as Common Stockholders until such holders exercise such warrants and acquire our
Common Stock.
Until holders of Pre-Funded Warrants or Series
Warrants acquire shares of our Common Stock upon exercise of the Pre-Funded Warrants or Series Warrants, as applicable, holders of Pre-Funded
Warrants or Series Warrants will have no rights with respect to the shares of our Common Stock underlying such Pre-Funded Warrants or
Series Warrants. Upon exercise of the Pre-Funded Warrants or Series Warrants, the holders will be entitled to exercise the rights of a
Common Stockholder only as to matters for which the record date occurs after the exercise date.
Provisions of the Series Warrants and Pre-Funded
Warrants offered by this prospectus could discourage an acquisition of us by a third party.
In
addition to the discussion of the provisions of our amended and restated certificate of incorporation,
certain provisions of the Series Warrants and Pre-Funded Warrants offered by this prospectus
could make it more difficult or expensive for a third party to acquire us. Such Series Warrants
and Pre-Funded Warrants prohibit us from engaging in certain transactions constituting “fundamental
transactions” unless, among other things, the surviving entity assumes our obligations
under the Series Warrants and Pre-Funded Warrants. Further, the Series Warrants and Pre-Funded
Warrants provide that, in the event of certain transactions constituting “fundamental
transactions,” with some exception, holders of such the Series Warrants and Pre-Funded
Warrants will have the right, at their option, to require us to repurchase such the Series
Warrants and Pre-Funded Warrants at a price described in the Series Warrants and Pre-Funded
Warrants. These and other provisions of the Series Warrants and Pre-Funded Warrants offered
by this prospectus could prevent or deter a third party from acquiring us even where the
acquisition could be beneficial to you.
The Series Warrants in this offering are
speculative in nature.
The Series Warrants in this offering do not confer
any rights of Common Stock ownership on its holders, such as voting rights or the right to receive dividends, but rather merely represent
the right to acquire shares of Common Stock at a fixed price, as the case maybe. In addition, following this offering, the market value
of the Series Warrants, if any, is uncertain and there can be no assurance that the market value of the Series Warrants will equal or
exceed their imputed offering price and consequently, whether it will ever be profitable for holders of the Series Warrants to exercise
such warrants. The Series Warrants will not be listed or quoted for trading on any market or exchange.
We do not intend to pay any cash dividends
on Common Stock in the foreseeable future and, therefore, any return on your investment in Common Stock must come from increases in the
fair market value and trading price of Common Stock.
We do not intend to pay any cash dividends on
Common Stock in the foreseeable future and, therefore, any return on your investment in Common Stock must come from increases in the fair
market value and trading price of Common Stock.
This is a best efforts offering. No
minimum amount of securities is required to be sold, and we may not raise the amount of capital we believe is required for our business
plans, including our near-term business plans, nor will investors in this offering receive a refund in the event that we do not sell
an amount of securities sufficient to pursue the business goals outlined in this prospectus.
The Placement Agent has agreed to use its
reasonable best efforts to solicit offers to purchase the securities in this offering. The Placement Agent has no obligation to buy any
of the securities from us or to arrange for the purchase or sale of any specific number or dollar amount of the securities. We may sell
fewer than all of the securities offered hereby, which may significantly reduce the amount of proceeds received by us, and investors
in this offering will not receive a refund in the event that we do not sell an amount of securities sufficient to support our continued
operations, including our near-term continued operations. Thus, we may not raise the amount of capital we believe is required for our
operations in the short-term and may need to raise additional funds to complete such short-term operations. Such additional fundraises
may not be available at all or available on terms acceptable to us.
There is no required minimum number of securities
that must be sold as a condition to completion of this offering, and we have not, nor will we, establish an escrow account, trust or
similar arrangement in connection with this offering. Because there is no minimum offering amount required as a condition to the closing
of this offering, the actual offering amount, placement agent fees and proceeds to us are not presently determinable and may be substantially
less than the maximum amounts set forth herein. Additionally, because there is no escrow account, trust or similar arrangement, and no
minimum offering amount, investors could be in a position where they have invested in us, but we are unable to fulfill our objectives
due to a lack of interest in this offering. Further, because there is no escrow account in operation and no minimum investment amount,
any proceeds from the sale of securities offered by us will be available for our immediate use, despite uncertainty about whether we
would be able to use such funds to effectively implement our business plan. Investor funds will not be returned under any circumstances
whether during or after the offering.
USE
OF PROCEEDS
We estimate that the net proceeds from this
offering will be approximately $5.1 million based on the sale of 2,020,202 shares of Common Stock and accompanying Series Warrants at
an assumed combined public offering price of $2.97 per share of Common Stock and the Series Warrants, which is equal to the last reported
sale price per share of our Common Stock on Nasdaq on November 20, 2023, after deducting the Placement Agent fees and estimated offering
expenses payable by us, and assuming no exercise of the Series Warrants being issued in this offering. The foregoing discussion additionally
assumes no sale of Pre-Funded Warrants.
However, because this is a best efforts offering
and there is no minimum offering amount required as a condition to the closing of this offering, the actual offering amount, the placement
agent’s fees and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth
on the cover page of this prospectus.
These estimates exclude the proceeds, if any,
from the exercise of the Series Warrants issued in this offering. We cannot predict when or if these Series Warrants will be exercised.
It is possible that these Series Warrants may expire and may never be exercised. Additionally, the Series Warrants contain a cashless
exercise provision that permit exercise of the Series Warrants on a cashless basis at any time where there is no effective registration
statement under the Securities Act of 1933, as amended, covering the issuance of the underlying shares.
We intend to use the net proceeds of this offering
for general corporate purposes, which may include research and development expenses, capital expenditures, working capital and general
and administrative expenses, and potential acquisitions of or investments in businesses, products and technologies that complement our
business, although we have no present commitments or agreements to make any such acquisitions or investments as of the date of this prospectus.
Our management will have broad discretion in the application of the net proceeds from this offering and could spend the proceeds in ways
that do not improve our results of operations or enhance the value of our Common Stock. Accordingly, you will be relying on the judgment
of our management on the use of net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. Our failure to apply these funds effectively could have a material adverse effect on our business
and cause the price of our Common Stock to decline.
Pending these uses, we intend to invest the funds
in short-term, investment grade, interest-bearing securities. It is possible that, pending their use, we may invest the net proceeds in
a way that does not yield a favorable, or any, return for us.
MARKET
PRICE OF OUR COMMON STOCK AND RELATED STOCKHOLDER MATTERS
Market Information
Our Common Stock is listed on Nasdaq under the
symbol “SNES.” A description of the Common Stock that we are issuing in this offering is set forth under the heading “Description
of Securities We Are Offering.” We do not intend to apply for the listing of the Pre-Funded Warrants or the Series Warrants that
are part of this offering on any national securities exchange.
The last reported sale price on Nasdaq for
our Common Stock on November 20, 2023 was $2.97 per share.
Holders
As
of November 20, 2023, we had 692 record holders of our Common Stock, and no preferred stock
issued and outstanding. The number of record holders was determined from the records of our
transfer agent and does not include beneficial owners of Common Stock whose shares are held
in the names of various security brokers, dealers, and registered clearing agencies. The
transfer agent of our Common Stock and publicly traded warrants is Transfer Online, Inc.
The transfer agent and registrar’s address is 512 SE Salmon Street, Portland, Oregon
97214.
Dividend Policy
We have never declared or paid any cash dividends
on our Common Stock. We do not anticipate paying any cash dividends to stockholders in the foreseeable future. In addition, any future
determination to pay cash dividends will be at the discretion of the board of directors and will be dependent upon our financial condition,
results of operations, capital requirements, and such other factors as the board of directors deem relevant.
DESCRIPTION
OF SECURITIES WE ARE OFFERING
The following is a summary of the material terms
of our Common Stock. For additional information about our authorized capital, including our Common Stock and our outstanding warrants
to purchase Common Stock, we refer you to our amended and restated certificate of incorporation and amended and restated bylaws that are
currently in effect, which are included herein as Exhibit 3.1 and Exhibit 3.2, respectively, and our filings with the SEC that are incorporated
by reference in this prospectus, including our Annual Report on Form 10-K for the year ended December 31, 2022. For instructions on how
to find copies of these documents, please read “Where You Can Find Additional Information” and “Incorporation of Certain
Information by Reference.”
General
The descriptions of our capital stock and certain
provisions of our amended and restated certificate of incorporation and amended and restated bylaws are summaries and are qualified by
reference to the amended and restated certificate of incorporation and amended and restated bylaws that are currently in effect.
Our amended and restated certificate of incorporation
provides for Common Stock and preferred stock, the rights, preferences and privileges of which may be designated from time to time by
our board of directors.
Our authorized capital stock consists of 110,000,000
shares, all with a par value of $0.001 per share, of which 100,000,000 shares are designated as Common Stock and 10,000,000 shares are
designated as preferred stock.
As
of November 20, 2023, our Common Stock was held by approximately 692 stockholders of record.
As of November 20, 2023, we had 41,392 shares of our Common Stock reserved for issuance under
our 2018 Equity Incentive Plan.
Common Stock
The holders of our Common Stock are entitled to
one vote per share on all matters submitted to a vote of our stockholders. Subject to preferences that may be applicable to any preferred
stock outstanding at the time, the holders of outstanding shares of Common Stock are entitled to receive ratably any dividends declared
by our board of directors out of assets legally available therefor. In the event that we liquidate, dissolve or wind up, holders of our
Common Stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any
then outstanding shares of preferred stock. Holders of Common Stock have no preemptive or conversion rights or other subscription rights.
There are no redemption or sinking fund provisions applicable to the Common Stock. As discussed in “Risk Factors” above, certain
provisions in our amended and restated certificate of incorporation and our amended and restated bylaws may discourage, delay or prevent
a merger, acquisition or other change of control involving us that our stockholders may consider favorable. All outstanding shares of
Common Stock are fully paid and non-assessable.
Except as otherwise required by Delaware law,
all stockholder action, other than the election of directors or certain amendments of our amended and restated certificate of incorporation,
is taken by the vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled
to vote on the subject matter, at a meeting in which a quorum, consisting of a majority of the outstanding shares of Common Stock is present
in person or by proxy. The election of directors by our stockholders is determined by a plurality of the voting power of the shares present
in person or represented by proxy at the meeting and entitled to vote, at a meeting held for such purposes at which a quorum, consisting
of a majority of the outstanding shares of Common Stock, is present in person or by proxy. Certain amendments to our amended and restated
certificate of incorporation require the approval of holders of at least sixty-six and two-third percent (66 2/3%) of the voting power
of all then-outstanding shares of our Common Stock entitled to vote generally in the election of directors, voting together as a single
class.
We have never declared or paid any cash dividends
on our capital stock. We currently intend to retain all available funds and any future earnings to support our operations and finance
the growth and development of our business. We do not intend to pay cash dividends on our Common Stock for the foreseeable future. Any
future determination related to our dividend policy will be made at the discretion of our board of directors and will depend upon, among
other factors, our results of operations, financial condition, capital requirements, contractual restrictions, business prospects and
other factors our board of directors may deem relevant.
The shares of Common Stock offered by this prospectus,
when issued and paid for, will also be fully paid and non-assessable.
Our Common Stock is listed on Nasdaq under the
symbol “SNES.”
The transfer agent and registrar for our Common
Stock is Transfer Online, Inc. The transfer agent and registrar’s address is 512 SE Salmon Street, Portland, Oregon 97214.
Series Warrants
The following summary of certain terms and
provisions of the Series Warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the
provisions of the Series Warrants, the forms of which are filed as exhibits to the registration statement of which this prospectus forms
a part. Prospective investors should carefully review the terms and provisions of the forms of Series Warrant for complete descriptions
of the terms and conditions of the Series Warrants.
We are selling to investors in this offering of
shares of our Common Stock (or Pre-Funded Warrants), together with a Series D Warrant to purchase one share of our Common Stock and a
Series E Warrant to purchase one share of our Common Stock for each share of Common Stock (or Pre-Funded Warrant) purchased in this offering
for a combined public offering price of $[●] (less $0.0001 per Pre-Funded Warrant). The Series D Warrants and the Series E Warrants
are referred to herein together as the “Series Warrants.”
The
Series Warrants have an exercise price of $[●] per share and will become exercisable
on the effective date of stockholder approval for the issuance of the shares upon exercise
of the Series Warrants (or, if permitted by the applicable rules and regulations of Nasdaq,
upon payment by the holder of $0.125 per share in addition to the applicable exercise price).
The Series D Warrants will expire five years from the date of issuance, and the Series E
Warrants will expire 18 months from the date of issuance. No fractional shares of Common
Stock will be issued in connection with the exercise of a Series Warrant. In lieu of fractional
shares, we will round up to the next whole share.
Subject to limited exceptions, a holder of Series
Warrants will not have the right to exercise any portion of its Series Warrants if the holder, together with its affiliates, would beneficially
own in excess of 4.99% (or, at the election of the holder, 9.99%) of the number of shares of our Common Stock outstanding immediately
after giving effect to such exercise (the “Beneficial Ownership Limitation”); provided, however, that upon 61 days’
prior notice to us, the holder may increase or decrease the Beneficial Ownership Limitation, provided that in no event shall the Beneficial
Ownership Limitation exceed 9.99%.
The shares of Common Stock issuable upon exercise
of the Series Warrants is subject to stockholder approval. We agreed to convene a stockholders’ meeting on or before 90 days following
the closing date of this offering, to obtain such approval, and every 90 days thereafter to seek such approval if approval is not obtained
at the initial meeting of stockholders until the earlier of the date on which stockholder approval is obtained or the Series Warrants
are no longer outstanding.
The Series Warrants contain a “cashless
exercise” feature that allows holders to exercise the Series Warrants without a cash payment to us upon the terms set forth in the
Series Warrants, if, at the time of exercise there is no effective registration statement registering, or the prospectus contained therein
is not available for the issuance of the shares to the exercising Series Warrant holder.
In the case of certain fundamental transactions
affecting our company, a holder of Series Warrants, upon exercise of such Series Warrants after such fundamental transaction, will have
the right to receive, in lieu of shares of our Common Stock, the same amount and kind of securities, cash or property that such holder
would have been entitled to receive upon the occurrence of the fundamental transaction, had the Series Warrants been exercised immediately
prior to such fundamental transaction. In lieu of such consideration, a holder of Series Warrants may instead elect to receive a cash
payment based upon the Black-Scholes value of their Series Warrants.
The exercise price and number of the shares of
our Common Stock issuable upon the exercise of the Series Warrants will be subject to adjustment in the event of any stock dividends and
splits, recapitalization, reorganization or similar transaction, as described in the Series Warrants.
We do not intend to list the Series Warrants on
any securities exchange or nationally recognized trading system. Except as otherwise provided in the Series Warrants or by virtue of such
holder’s ownership of shares of our Common Stock, the holders of the Series Warrants do not have the rights or privileges of holders
of our Common Stock, including any voting rights, until they exercise their Series Warrants.
Pre-Funded Warrants
The following summary of certain terms and
provisions of Pre-Funded Warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the
provisions of the Pre-Funded Warrant, the form of which is filed as an exhibit to the registration statement of which this prospectus
forms a part. Prospective investors should carefully review the terms and provisions of the form of pre-funded warrant for a complete
description of the terms and conditions of the Pre-Funded Warrants.
Each Pre-Funded Warrant offered hereby will have
an initial exercise price per share equal to $0.0001. The Pre-Funded Warrants will be immediately exercisable and may be exercised at
any time until the Pre-Funded Warrants are exercised in full. The exercise price and number of shares of Common Stock issuable upon exercise
is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our Common
Stock and the exercise price. The Pre-Funded Warrants will be issued separately from the accompanying Series Warrants and may be transferred
separately immediately thereafter.
The Pre-Funded Warrants will be exercisable, at
the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for
the number of shares of our Common Stock purchased upon such exercise (except in the case of a cashless exercise as discussed above).
A holder (together with its affiliates) may not exercise any portion of the Pre-Funded Warrant to the extent that the holder would own
more than 4.99% of the outstanding Common Stock immediately after exercise, except that upon at least 61 days’ prior notice from
the holder to us, the holder may increase the amount of ownership of outstanding stock after exercising the holder’s Pre-Funded
Warrants up to 9.99% of the number of shares of our Common Stock outstanding immediately after giving effect to the exercise, as such
percentage ownership is determined in accordance with the terms of the Pre-Funded Warrants. Purchasers of Pre-Funded Warrants in this
offering may also elect prior to the issuance of the Pre-Funded Warrants to have the initial exercise limitation set at 9.99% of our outstanding
Common Stock.
At any time, in lieu of making the cash payment
otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to
receive upon such exercise (either in whole or in part) the net number of shares of Common Stock determined according to a formula set
forth in the Pre-Funded Warrants.
Subject to applicable laws, a Pre-Funded Warrant
may be transferred at the option of the holder upon surrender of the Pre-Funded Warrant to us together with the appropriate instruments
of transfer.
We do not intend to list the Pre-Funded Warrants
on any securities exchange or nationally recognized trading system. Except as otherwise provided in the Pre-Funded Warrants or by virtue
of such holder’s ownership of shares of our Common Stock, the holders of the Pre-Funded Warrants do not have the rights or privileges
of holders of our Common Stock, including any voting rights, until they exercise their Pre-Funded Warrants.
Placement Agent Warrants
We have also agreed to issue to the Placement
Agent or its designees as compensation in connection with this offering, the Placement Agent Warrants to purchase up to 151,515 shares
of Common Stock at an exercise price of $[●] per share (representing 125% of the offering price per share and accompanying Series
Warrants). The Placement Agent Warrants will expire five years from the commencement of sales in this offering. Except as provided above,
the Placement Agent Warrants will have substantially the same terms as the Series Warrants described herein. See “Plan of Distribution”
below.
Anti-Takeover Provisions
Certificate of Incorporation and Bylaws
Because our stockholders do not have cumulative
voting rights, our stockholders holding a majority of the outstanding shares of Common Stock outstanding will be able to satisfy the quorum
requirement and be able to elect all of our directors by a plurality of the voting power of the shares present in person or by proxy.
Our amended and restated certificate of incorporation and amended and restated bylaws provide that all stockholder actions must be effected
at a duly called meeting of stockholders and not by written consent. A special meeting of stockholders may be called by a resolution adopted
by a majority of our board, our chair of the board, our chief executive officer or the president in absence of the chief executive officer.
Any power of the stockholders to call a special meeting is specifically denied by the terms of our amended and restated certificate of
incorporation.
Our board of directors is divided into three classes
with staggered three-year terms. These provisions make it more difficult for our existing stockholders to replace our board of directors
as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to
retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect
a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to
issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to obtain control of us.
These provisions are intended to enhance the likelihood
of continued stability in the composition of our board of directors and its policies and to discourage certain types of transactions that
may involve an actual or threatened acquisition of us. These provisions are also designed to reduce our vulnerability to an unsolicited
acquisition proposal and to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect
of discouraging others from making tender offers for our shares and may have the effect of deterring hostile takeovers or delaying changes
in our control or management. Consequently, these provisions also may inhibit fluctuations in the market price of our stock that could
result from actual or rumored takeover attempts.
Section 203 of the Delaware General Corporation
Law
We are subject to Section 203 of the Delaware
General Corporation Law, which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder
for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
| ● | Before such date, the board of directors of the corporation approved either the business combination or
the transaction that resulted in the stockholder becoming an interested stockholder; |
| ● | Upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding
for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those
shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| ● | On or after such date, the business combination is approved by the board of directors and authorized at
an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least sixty-six and two-third
percent (66 2/3%) of the outstanding voting stock that is not owned by the interested stockholder. |
In general, Section 203 defines business combination
to include the following:
| ● | Any merger or consolidation involving the corporation and the interested stockholder; |
| ● | Any sale, lease, exchange, mortgage, transfer, pledge or other disposition of 10% or more of the assets
of the corporation involving the interested stockholder; |
| ● | Subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; |
| ● | Any transaction involving the corporation that has the effect of increasing the proportionate share of
the stock or any class or series of the corporation beneficially owned by the interested stockholder; or |
| ● | The receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or
other financial benefits by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or within
three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of
the corporation.
Choice of Forum
Our amended and restated certificate of incorporation
provides that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding brought on
our behalf; any action asserting a claim of a breach of fiduciary duty owed by any director, officer or other employee to us or our stockholders;
any action asserting a claim against us or any of our directors, officers or other employees arising pursuant to the Delaware General
Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws; or any action or proceeding
asserting a claim against us or any of our directors, officers or other employees that is governed by the internal affairs doctrine.
However, this exclusive forum provision would
not apply to suits brought to enforce any duty or liability created by the Securities Exchange Act of 1934, as amended, or the rules and
regulations thereunder, or any other claim for which the federal courts have exclusive jurisdiction. Furthermore, this provision may apply
to Securities Act claims and federal courts have concurrent jurisdiction over all suits brought to enforce any duty or liability created
by the Securities Act or the rules and regulations thereunder. Accordingly, there is uncertainty as to whether a court would enforce this
provision and that our stockholders cannot waive compliance with the federal securities laws and the rules and regulations thereunder.
PLAN
OF DISTRIBUTION
Pursuant
to an engagement agreement, dated August 29, 2022 and amended October 21, 2022 and November
11, 2022 (as amended, the “Engagement Agreement”), we have engaged H.C. Wainwright
& Co., LLC to act as our exclusive Placement Agent to solicit offers to purchase the
securities offered pursuant to this prospectus on a reasonable best efforts basis. The Engagement
Agreement does not give rise to any commitment by the Placement Agent to purchase any of
our securities, and the Placement Agent will have no authority to bind us by virtue of the
Engagement Agreement. The Placement Agent is not purchasing or selling any of the securities
offered by us under this prospectus, nor is it required to arrange for the purchase or sale
of any specific number or dollar amount of securities. This is a best efforts offering, and
there is no minimum offering amount required as a condition to the closing of this offering.
The Placement Agent has agreed to use reasonable best efforts to arrange for the sale of
the securities by us. Therefore, we may not sell all of the shares of Common Stock, Pre-Funded
Warrants and Series Warrants being offered. The terms of this offering were subject to market
conditions and negotiations between us, the placement agent and prospective investors. The
Placement Agent does not guarantee that it will be able to raise new capital in any prospective
offering. The Placement Agent may engage sub-agents or selected dealers to assist with the
offering.
Investors
purchasing securities offered hereby will have the option to execute a securities purchase
agreement with us. In addition to rights and remedies available to all purchasers in this
offering under federal securities and state law, the purchasers that enter into a securities
purchase agreement will also be able to bring claims of breach of contract against us. The
ability to pursue a claim for breach of contract is material to larger purchasers in this
offering as a means to enforce the following covenants uniquely available to them under the
securities purchase agreement: (i) a covenant to not enter into variable rate financings
for a period of one year following the closing of the offering, subject to an exception;
and (ii) a covenant to not enter into any equity financings for 90 days from closing of the
offering, subject to certain exceptions. The nature of the representations, warranties and
covenants in the securities purchase agreements shall include:
| ● | standard issuer representations and warranties
on matters such as organization, qualification, authorization, no conflict, no governmental filings required, current in SEC filings,
no litigation, labor or other compliance issues, environmental, intellectual property and title matters and compliance with various laws
such as the Foreign Corrupt Practices Act; and |
| ● | covenants regarding matters such as registration
of warrant shares, no integration with other offerings, filing of a Form 8-K to disclose entering into these securities purchase agreements,
no stockholder rights plans, no material nonpublic information, use of proceeds, indemnification of purchasers, reservation and listing
of shares of Common Stock, and no subsequent equity sales for 90 days. |
We
expect to deliver the securities being offered pursuant to this prospectus on or about [●],
2023. There is no minimum number of securities or amount of proceeds that is a condition
to closing of this offering.
Fees and Expenses
We
have agreed to pay the Placement Agent a cash fee equal to 7.5% of the aggregate gross proceeds
raised in this offering, its legal fees and expenses and other out-of-pocket expenses in
an amount up to $100,000 and for clearing fees, in an amount up to $15,950 in connection
with this offering. We have also agreed to pay the Placement Agent a management fee equal
to 1.0% of the gross proceeds raised in this offering and up to $40,000 or 3% of the aggregate
proceeds of this offering, whichever is less, for non-accountable expenses. We estimate the
total offering expenses of this offering that will be payable by us, excluding the placement
agent fees and expenses, will be approximately $195,000.
Placement Agent Warrants
In
addition, we have agreed to issue to the Placement Agent or its designees as compensation
in connection with this offering the Placement Agent Warrants to purchase up to 151,515
shares of Common Stock (which represents 7.5% of the aggregate number of shares of shares
of Common Stock issued in this offering and issuable upon the exercise of the Pre-Funded
Warrants issued in this offering) with an exercise price of $[●] per share (representing
125% of the combined public offering price per share and accompanying Series Warrants). The
Placement Agent Warrants will become exercisable on the effective date of the stockholder
approval for the issuance of the shares upon exercise of the Placement Agent Warrants (or,
if permitted by the applicable rules and regulations of Nasdaq, upon payment by the holder
of $0.125 per share in addition to the applicable exercise price) and will expire five years
from the commencement of sales in this offering. The Placement Agent Warrants and the shares
issuable upon exercise of the Placement Agent Warrants are registered on the registration
statement of which this prospectus is a part. The form of the Placement Agent Warrant has
been included as an exhibit to this registration statement of which this prospectus forms
a part.
Tail
We have also agreed to pay the Placement Agent a
tail fee equal to the cash and warrant compensation in this offering, if any investor, who was contacted or introduced to us by the Placement
Agent during the term of its engagement, provides us with capital in any public or private offering or other financing or capital raising
transaction during the 12-month period following expiration or termination of our engagement of the Placement Agent, other than certain
private placement transactions involving issuances of securities to an operating company or an owner of an asset in a business synergistic
with our business. The Placement Agent will only be entitled to such fee to the extent that the parties were directly introduced to us
by the Placement Agent, in accordance with FINRA Rule 2010).
Regulation M
The Placement Agent may be deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale
of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the Placement Agent would be required to comply with the requirements of the Securities Act and the Exchange Act,
including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may limit the timing of
purchases and sales of our securities by the Placement Agent acting as principal. Under these rules and regulations, the Placement Agent
(i) may not engage in any stabilization activity in connection with our securities and (ii) may not bid for or purchase any of our securities
or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed
its participation in the distribution.
Indemnification
We
have agreed to indemnify the Placement Agent against liabilities relating to the offering
arising under the Securities Act and the Exchange Act, liabilities arising from breaches
of some or all of the representations and warranties contained in the Engagement Agreement,
and to contribute to payments that the Placement Agent may be required to make for these
liabilities.
Determination of Offering Price
Our
Common Stock is currently traded on Nasdaq under the symbol “SNES.” On November 20, 2023 the closing price of our Common
Stock on Nasdaq was $2.97 per share.
There is a material disparity between the combined
public offering price of the shares of our Common Stock and accompanying Series Warrants and combined public offering price of the Pre-Funded
Warrants and accompanying Series Warrants being offered under this prospectus and the market price of the Common Stock at the date of
this prospectus. We believe that the market price of our Common Stock at the date of this prospectus is not the appropriate public offering
price for the shares of our Common Stock, or the Pre-Funded Warrants, because the market price is affected by a number of factors. The
final combined public offering price was determined by negotiation between us, the Placement Agent and the investors in this offering.
The principal factors considered by us and the Placement Agent in determining the final public offering price included:
| ● | the recent trading history of our Common Stock on Nasdaq, including market prices and trading volume of
our Common Stock; |
| ● | the current market price of our Common Stock on Nasdaq; |
| ● | the recent market prices of, and demand for, publicly traded Common Stock of generally comparable companies; |
| ● | the information set forth or incorporated by reference in this prospectus and otherwise available to the
Placement Agent; |
| ● | our past and present financial performance and an assessment of our management; |
| ● | our prospects for future earnings and the present state of our products; |
| ● | the current status of competitive products and product developments by our competitors; |
| ● | our history and prospects, and the history and prospects of the industry in which we compete; |
| ● | the general condition of the securities markets at the time of this offering; and |
| ● | other factors deemed relevant by the Placement Agent and us. |
The final combined public offering price stated
on the cover page of this prospectus should not be considered an indication of the actual value of the shares of Common Stock and accompanying
Series Warrants and/or the Pre-Funded Warrants and accompanying Series Warrants sold in this offering. That price is subject to change
as a result of market conditions and other factors and we cannot assure you that the shares of Common Stock and accompanying Series Warrants
and/or Pre-Funded Warrants and accompanying Series Warrants sold in this offering can be resold at or above the combined public offering
price.
Lock-Up Agreements
Our officers and directors, representing beneficial
ownership of 3.84% of our outstanding shares of Common Stock, have agreed with the Placement Agent to be subject to a lock-up period
of 90 days following the closing of this offering. This means that, during the applicable lock-up period, such persons may not offer
for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose
of, directly or indirectly, any shares of our Common Stock or any securities convertible into, or exercisable or exchangeable for, shares
of our Common Stock. Certain limited transfers are permitted during the lock-up period if the transferee agrees to these lock-up restrictions.
We have also agreed to similar lock-up restrictions on the issuance and sale of our securities for 90 days following the closing of this
offering, although we will be permitted to issue stock options or stock awards to directors, officers and employees under our existing
plans. The lock-up period is subject to an additional extension to accommodate for our reports of financial results or material news
releases. The Placement Agent may, in its sole discretion and without notice, waive the terms of any of these lock-up agreements.
Transfer Agent and Registrar
The transfer agent and registrar for our Common
Stock is Transfer Online, Inc.
Other Relationships
The Placement Agent and its affiliates have engaged,
and may in the future engage, in investment banking transactions and other commercial dealings in the ordinary course of business with
us or our affiliates. The Placement Agent has received, or may in the future receive, customary fees and commissions for these transactions.
In addition, in the ordinary course of their business
activities, the Placement Agent and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities
(or related derivative securities) for their own account and for the accounts of their customers. Such investments and securities activities
may involve securities and/or instruments of ours or our affiliates. The Placement Agent and its affiliates may also make investment recommendations
and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend
to clients that they acquire, long and/or short positions in such securities and instruments.
The Placement Agent acted as the placement agent
in connection with several private placements and registered offerings in the past three years and it received compensation for each such
offering. However, except as disclosed in this prospectus, we have no present arrangements with the Placement Agent for any further services.
Electronic Distribution
A prospectus in electronic format may be made
available on a website maintained by the Placement Agent and the Placement Agent may distribute prospectuses electronically. Other than
the prospectus in electronic format, the information on these websites is not part of this prospectus or the registration statement of
which this prospectus forms a part, has not been approved and/or endorsed by us or the Placement Agent and should not be relied upon by
investors.
Foreign Regulatory Restrictions on Purchase
of Securities Offered Hereby Generally
No action has been or will be taken in any jurisdiction
(except in the United States) that would permit a public offering of the securities offered by this prospectus, or the possession, circulation
or distribution of this prospectus or any other material relating to us or the securities offered hereby in any jurisdiction where action
for that purpose is required. Accordingly, the securities offered hereby may not be offered or sold, directly or indirectly, and neither
of this prospectus nor any other offering material or advertisements in connection with the securities offered hereby may be distributed
or published, in or from any country or jurisdiction except in compliance with any applicable rules and regulations of any such country
or jurisdiction.
The Placement Agent may arrange to sell securities
offered by this prospectus in certain jurisdictions outside the United States, either directly or through affiliates, where they are permitted
to do so. See “Where You Can Find Additional Information.”
Nasdaq Listing
Our Common Stock is listed on Nasdaq under the
symbol “SNES.”
Amendments to Plan of Distribution
This prospectus may be amended or supplemented
from time to time, if required, to describe a specific plan of distribution.
LEGAL
MATTERS
The
validity of the securities being offered hereby will be passed upon for us by Greenberg Traurig,
LLP, Phoenix, Arizona. Haynes and Boone, LLP, New York, New York is acting as counsel for
the Placement Agent in connection with certain legal matters related to this offering.
EXPERTS
Our financial statements as of December 31, 2022
and 2021, and for each of the two years in the period ended December 31, 2022, incorporated by reference in this prospectus have
been so incorporated in reliance on the report of M&K CPAS, PLLC, an independent registered public accounting firm (which report contains
an explanatory paragraph describing conditions that raise substantial doubt about our ability to continue as a going concern, as
described in Note 1 to the financial statements), given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements
and other information regarding companies, such as ours, that file documents electronically with the SEC. The website address is www.sec.gov.
The information on the SEC’s website is not part of this prospectus, and any references to this website or any other website are
inactive textual references only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We “incorporate by reference” certain
information into this registration statement, which means that we disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and relying on the Fixing
America’s Surface Transportation Act, or the FAST Act, as a smaller reporting company, subsequent information that we file with
the SEC will automatically update and supersede that information. Any statement contained in a previously filed document incorporated
by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this
prospectus modifies or replaces that statement.
We incorporate by reference our documents listed
below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of the offering, including documents we may file with the SEC after the date of the initial registration statement and prior to effectiveness
of the registration statement. We are not, however, incorporating by reference any documents or portions thereof, whether specifically
listed below or filed in the future, that are not deemed “filed” with the SEC, including any information furnished pursuant
to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K. This prospectus and any amendments
or supplements thereto incorporate by reference the documents set forth below that have previously been filed with the SEC:
| ● | Our Annual Report on Form
10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 17, 2023; |
|
● |
Our Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, filed with the SEC on May
11, 2023, August
11, 2023, and November 9, 2023,
respectively; |
|
● |
The portions of our Definitive Proxy Statement
on Schedule
14A that are deemed “filed” with the SEC, filed with the SEC on April 28, 2023; |
|
● |
Our Current Reports on Form 8-K filed with the
SEC on January
5, 2023, February
16, 2023, April
12, 2023, April
24, 2023, June
27, 2023, August
21, 2023, August
22, 2023, August
28, 2023, November
15, 2023, and November 22, 2023; and |
| ● | The description of our capital stock contained in our registration statement on Form 8-A filed with the
SEC on November 7, 2016, including any amendments or reports filed for the purpose of updating such description (including Exhibit 4.1
to our Amendment No. 1 to the Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019, filed with the SEC on April 21,
2020). |
You should rely only on the information incorporated
by reference or provided in this prospectus. We have not authorized anyone else to provide you with any information. You should not assume
that the information incorporated by reference or provided in this prospectus is accurate as of any date other than the date on the front
of each document. You may request a free copy of any or all of the reports or documents incorporated by reference in this prospectus (other
than exhibits, unless they are specifically incorporated by reference in the documents) by writing or telephoning us at the following
address:
SenesTech, Inc.
23460 N 19th Ave., Suite 110
Phoenix, AZ 85027
Attn: Secretary
(928) 779-4143
We also maintain a website at www.senestech.com
where incorporated reports or other documents filed with the SEC may be accessed. We have not incorporated by reference into this prospectus
the information contained in, or that can be accessed through, our website, and you should not consider it to be part of this prospectus.
SenesTech, Inc.
Up to 2,020,202 Shares of Common Stock
and Accompanying Series D Warrants to Purchase up to 2,020,202 Shares of Common Stock and Series E Warrants to Purchase up to 2,020,202
Shares of Common Stock
Pre-Funded Warrants to Purchase up to 2,020,202
Shares of Common Stock and Accompanying Series D Warrants to Purchase up to 2,020,202 Shares of Common Stock and Series E Warrants to
Purchase up to 2,020,202 Shares of Common Stock
Up to 2,020,202 Shares of Common Stock Underlying
the Pre-Funded Warrants, up to 2,020,202 Shares of Common Stock Underlying the Series D Warrants and up to 2,020,202 Shares of Common
Stock Underlying the Series E Warrants
Placement Agent Warrants to Purchase
151,515 Shares of Common Stock
Up to 151,515 Shares of Common Stock Underlying
the Placement Agent Warrants
PROSPECTUS
H.C.
Wainwright & Co.
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution
The following table sets forth the anticipated
costs and expenses payable by SenesTech, Inc. (other than commissions and fees) in connection with the sale of the securities being registered.
All amounts shown are estimates except for the SEC registration fee.
SEC registration fee | |
$ | 2,556.98 | |
FINRA filing fees | |
| 3,980.47 | |
Legal fees and expenses | |
| 150,000.00 | |
Accounting fees and expenses | |
| 25,000.00 | |
Transfer agent fees and expenses | |
| 3,000.00 | |
Printing and miscellaneous expenses | |
| 10,462.55 | |
Total | |
$ | 195,000.00 | |
ITEM 14. Indemnification of Directors and Officers
The Registrant incorporated under the laws of
the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any
persons who were, are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact
that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation
as an officer, director, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnification
may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with defending or settling such action, suit or proceeding, provided that such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification
is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against
the expenses (including attorneys’ fees) actually and reasonably incurred.
The Registrant’s amended and restated certificate
of incorporation and amended and restated bylaws provide for the indemnification of its directors and officers to the fullest extent permitted
under the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability
for any:
| ● | Breach of director’s duty of loyalty to the corporation or its
stockholders; |
| ● | Act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law; |
| ● | Unlawful payment of dividends or unlawful purchase or redemption
of shares; or |
| ● | Transaction from which the director derives an improper personal
benefit. |
The Registrant’s amended and restated certificate
of incorporation includes such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding
in advance of its final disposition shall be paid by the Registrant upon delivery to it of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be
indemnified by the Registrant.
Section 174 of the Delaware General Corporation
Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful
stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful
actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the
books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director
receives notice of the unlawful acts.
As permitted by the Delaware General Corporation
Law, the Registrant has entered into indemnification agreements with each of its directors and executive officers, that require the Registrant
to indemnify such persons against any and all costs and expenses (including attorneys’, witness or other professional fees) actually
and reasonably incurred by such persons in connection with any action, suit or proceeding (including derivative actions), whether actual
or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or officer or
is or was acting or serving as an officer, director, employee or agent of the Registrant or any of its affiliated enterprises. Under these
agreements, the Registrant is not required to provide indemnification for certain matters, including:
| ● | Indemnification for expenses or losses with respect to proceedings
initiated by the director or officer, including any proceedings against the Registrant or its directors, officers, employees or other
indemnitees and not by way of defense, with certain exceptions; |
| ● | Indemnification for any proceeding if a final decision by
a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; |
| ● | Indemnification for the disgorgement of profits arising from
the purchase or sale by the director or officer of securities of the Registrant in violation of Section 16(b) of the Exchange Act, or
any similar successor statute; or |
| ● | Indemnification for the director or officer’s reimbursement
to the Registrant of any bonus or other incentive-based or equity-based compensation previously received by the director or officer or
payment of any profits realized by the director or officer from the sale of securities of the Registrant, as required in each case under
the Exchange Act. |
The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification thereunder. Except as otherwise disclosed in our periodic
reports incorporated by reference herein, there is at present no pending litigation or proceeding involving any of the Registrant’s
directors or executive officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened
litigation or proceeding that may result in a claim for indemnification.
The
Registrant has an insurance policy in place, with limits of $20.0 million in the aggregate,
that covers its officers and directors with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
ITEM 15. Recent Sales of Unregistered Securities
On August 21, 2023, we entered into an inducement
offer letter agreement (the “Inducement Letter”) with a certain holder (the “Holder”) of certain of our existing
warrants to purchase up to (i) 6,453 shares of our common stock issued on October 26, 2020 and subsequently amended on November 16, 2022,
at an exercise price of $37.98 per share, as amended (the “October 2020 Warrants”), and (ii) 238,095 shares of common stock
issued on November 18, 2022, at an exercise price of $37.98 per share (the “November 2022 Warrants” and together with the
October 2020 Warrants, the “Existing Warrants). Pursuant to the Inducement Letter, the Holder agreed to exercise for cash its Existing
Warrants to purchase an aggregate of 244,548 shares of our common stock at a reduced exercise price of $8.6424 per share in consideration
of our agreement to issue new common stock purchase warrants (the “New Warrants”), as described below, to purchase up to
an aggregate of 489,097 shares of our common stock (the “New Warrant Shares”). Our aggregate gross proceeds from the exercise
of the Existing Warrants by the Holder were approximately $2.1 million, before deducting placement agent fees and other offering expenses
payable by us. The transactions contemplated pursuant to the Inducement Letter closed on August 24, 2023. We used the net proceeds from
the transaction for general corporate purposes. In connection with the transaction, we also issued to H.C. Wainwright & Co, LLC,
as the exclusive placement agent in connection with the transaction, or to its designees, as part of the placement agent’s compensation,
warrants to purchase up to 12,229 shares of common stock, which have the same terms as the New Warrants except the placement agent warrants
have an exercise price equal to $10.8036 per share. The New Warrants and the shares of Common Stock issuable upon exercise thereof,
were issued in reliance on the exemption from registration provided in Section 4(a)(2) under the Securities Act and Regulation D promulgated
thereunder. The foregoing description of the Inducement Letter and warrants are not complete and are qualified in their entirety by references
to the full text of the form of Inducement Letter, dated as of August 21, 2023, and the form of New Warrant, which are included as Exhibit
10.26 and Exhibit 4.29, respectively, hereto.
On
April 12, 2023, we sold, in a Registered Direct Offering registered on our shelf registration
statement on Form S-3 (File No. 333-261227), 71,430 Shares of our Common Stock and, in a
concurrent Private Placement, unregistered Series C Warrants to purchase up to 71,430 shares
of Common Stock, at an offering price of $21.00 per Share and associated Series C Warrant.
The Series C Warrants were immediately exercisable at an exercise price of $19.44 per share
and have a term of five and one-half years from the date of issuance. The Series C Warrants
may be exercised on a cashless basis if there is no effective registration statement registering
the resale of the shares issuable upon exercise of the Series C Warrants. A holder will not
have the right to exercise any portion of the Series C Warrants if the holder (together with
its affiliates) would beneficially own in excess of 4.99% (or 9.99% as elected by the holder)
of the number of shares of common stock outstanding immediately after giving effect to the
exercise, as such percentage ownership is determined in accordance with the terms of the
Series C Warrants. However, upon notice from the holder to us, the holder may increase the
beneficial ownership limitation, which may not exceed 9.99% of the number of shares of Common
Stock outstanding immediately after giving effect to the exercise, as such percentage ownership
is determined in accordance with the terms of the Series C Warrants, provided that any increase
in the beneficial ownership limitation will not take effect until 61 days following notice
to us. In connection with the April 2023 Offerings, we also issued to H.C. Wainwright &
Co, LLC, as the exclusive placement agent in connection with the April 2023 Offerings, or
to its designees, as part of the placement agent’s compensation, warrants to purchase
up to an aggregate of 5,359 shares of Common Stock, which warrants have substantially the
same terms as the Series C Warrants, except that the warrants have an exercise price equal
to $26.25 per share and expire on the fifth anniversary from the date of the commencement
of sales in the April 2023 Offerings (the “2023 Placement Agent Warrants”). The
Series C Warrants, the 2023 Placement Agent Warrants and the shares of Common Stock issuable
upon exercise thereof, were issued in reliance on the exemption from registration provided
in Section 4(a)(2) under the Securities Act and Regulation D promulgated thereunder. The
foregoing description of the April 2023 Offerings, the Series C Warrants and the 2023 Placement
Agent Warrants are not complete and are qualified in its entirety by references to the full
text of the form of Securities Purchase Agreement, dated as of April 10, 2023, the form of
Series C Warrant and the form of 2023 Placement Agent Warrant, which are included as Exhibit
10.24, Exhibit 4.27 and Exhibit 4.28, respectively, hereto.
On
March 10, 2023, we entered into a Marketing Services Agreement with a marketing service provider,
pursuant to which, among other things, we agreed to issue 4,539 shares of Common Stock as
compensation for marketing services provided to our company. The shares of Common Stock were
issued in reliance on the exemption from registration provided in Section 4(a)(2) under the
Securities Act and Regulation D promulgated thereunder.
On March 23, 2021, we sold, in an offering
registered on our shelf registration statement on Form S-3 (File No. 333-225712), 8,230 shares of our Common Stock, at a purchase price
of $24.00 per share (the “2021 Offering”). In connection with the 2021 Offering, we agreed, in addition to paying certain
fees to the Placement Agent to issue to the Placement Agent warrants to purchase up to 7.5% of the aggregate number of shares of Common
Stock sold in the Offering, or 618 shares of Common Stock (the “2021 Placement Agent Warrants”). The 2021 Placement Agent
Warrants became exercisable commencing six months following the date of issuance, expire five years following the date of sale and have
an exercise price per share of $60.00 per share. The Placement Agent Warrants, and the shares of Common Stock issuable upon exercise
thereof, were issued in reliance on the exemption from registration provided in Section 4(a)(2) under the Securities Act and Regulation
D promulgated thereunder. The foregoing description of the 2021 Offering and the Placement Agent Warrants are not complete and are qualified
in its entirety by references to the full text of the form of Securities Purchase Agreement, dated as of March 9, 2021, and the form
of 2021 Placement Agent Warrant, which are included as Exhibit 10.20 and Exhibit 4.20, respectively, hereto.
On February 2, 2021, pursuant to a Securities
Purchase Agreement with certain purchasers (the “February 2021 Securities Purchase Agreement”), we issued and sold to certain
purchasers in a private placement (the “February 2021 Private Placement”) an aggregate of (i) 18,287 shares of Common
Stock, or pre-funded warrants (the “February 2021 Pre-Funded Warrants”) to purchase up to an aggregate of 18,287 shares
of Common Stock, and (ii) warrants (the “February 2021 Series A Warrants”) to purchase up to an aggregate of 9,144 shares
of Common Stock. Pursuant to the February 2021 Securities Purchase Agreement, we also issued to the Placement Agent warrants (the “February
2021 Placement Agent Warrants”) to purchase up to 1,372 shares of Common Stock. The shares of Common Stock and the February 2021
Pre-Funded Warrants sold pursuant to the February 2021 Securities Purchase Agreement, as well as the February 2021 Series A Warrants,
the February 2021 Placement Agent Warrants, and the shares of Common Stock issuable upon exercise thereof, were issued in reliance on
the exemption from registration provided in Section 4(a)(2) under the Securities Act and Regulation D promulgated thereunder. The foregoing
description of the February 2021 Private Placement Offering, the February 2021 Securities Purchase Agreement, the February 2021 Pre-Funded
Warrants and the February 2021 Placement Agent Warrants are not complete and are qualified in its entirety by reference to the full text
of the form of Securities Purchase Agreement, the form of Pre-Funded Warrant and the form of Placement Agent Warrant, which are included
as Exhibits 10.16, 4.17, and 4.19, respectively, hereto.
On October 23, 2020, we entered into an inducement
letter agreement (the “2020 Letter Agreement”) with an institutional investor, pursuant to which, among other things, we
agreed to issue, in a warrant exchange transaction, a warrant (the “2020 New Warrant”) exercisable for up to 7,087 shares
of Common Stock, with an exercise price of $415.20 per warrant share (the “2020 New Warrant Shares”), and warrants to the
Placement Agent (the “2020 Placement Agent Warrants”, and together with the New Warrant, the “2020 Warrants”)
exercisable for an aggregate of up to 356 shares of Common Stock (the “2020 Placement Agent Warrant Shares”, and together
with the New Warrant Shares, the “Warrant Shares”), with an exercise price of $517.44 per 2020 Placement Agent Warrant Share.
The 2020 Warrants will expire five and one-half years following the date of issuance, subject to customary adjustment as set forth in
the 2020 Warrants. The 2020 Warrants and the 2020 Placement Agent Warrants, and the shares of Common Stock issuable upon exercise thereof,
were issued in reliance on the exemption from registration provided in Section 4(a)(2) under the Securities Act, and Regulation D promulgated
thereunder. The foregoing description of the 2020 Letter Agreement and the 2020 Warrants are not complete and are qualified in their
entirety by references to the full text of the Form of 2020 Letter Agreement, the Form of 2020 New Warrant and the Form of 2020 Placement
Agent Warrant, which are included as Exhibit 10.15, Exhibit 4.16 and Exhibit 4.17, respectively, hereto.
ITEM 16. Exhibits and Financial Statement Schedules
Exhibit
Number |
|
Description |
3.1 |
|
Amended and Restated Certificate of Incorporation, as amended by the Certificate of Amendment to the Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 17, 2020 (File no. 001-37941)) |
3.1(a) |
|
Certificate of Designation of the Series C Preferred Stock of the Registrant (incorporated by reference to Exhibit 3.1(a) to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 26, 2022 (File no. 001-37941)) |
3.1(b) |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of SenesTech, Inc. (incorporated by reference to Exhibit 3.1(a) to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 15, 2022 (File no. 001-37941)) |
3.1(c) |
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation of SenesTech, Inc. (incorporated by reference to Exhibit 3.1(a)
to the Reistrant’s Current Report on Form 8-K, filed with the SEC on November 15, 2023 (File no. 001-37941)) |
3.2 |
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.5 to the Registrant’s Registration Statement on Form S- 1, filed with the SEC on September 21, 2016 (File no. 333-213736)) |
3.2(a) |
|
Amendment No. 1 to the Amended and Restated Bylaws of SenesTech, Inc., dated June 16, 2021 (i incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 17, 2021 (File no. 001-37941)) |
4.1 |
|
Form of the Registrant’s Common Stock certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, filed with the SEC on October 7, 2016 (File no. 333-213736)) |
4.2+ |
|
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 21, 2016 (File no. 001-37941)) |
4.3 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, filed with the SEC on November 16, 2017 (File no. 333-221433)) |
4.4 |
|
Form of Underwriter’s Warrant, as amended (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 21, 2017 (File no. 001-37941)) |
4.5 |
|
Form of New Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 20, 2018 (File no. 001-37941)) |
4.6 |
|
Form of Warrant issued to investors in Rights Offering (incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.7 |
|
Form of Warrant issued to dealer-manager in Rights Offering (incorporated by reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.8 |
|
Warrant Agency Agreement, dated August 13, 2018, between the Registrant and Transfer Online, Inc. (incorporated by reference to Exhibit 4.3 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.9 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 17, 2019 (File no. 001-37941)) |
4.10 |
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 28, 2020 (File no. 001-37941)) |
Exhibit
Number |
|
Description |
4.11 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 28, 2020 (File no. 001-37941)) |
4.12 |
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 6, 2020 (File no. 001-37941)) |
4.13 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 6, 2020 (File no. 001-37941)) |
4.14+ |
|
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.6 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 17, 2020 (File no. 001-37941)) |
4.15 |
|
Form of New Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2020 (File no. 001-37941)) |
4.16 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2020 (File no. 001-37941)) |
4.17 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941)) |
4.18 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941)) |
4.19 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941)) |
4.20 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 23, 2021 (File no. 001-37941)) |
4.21 |
|
Form of Series A Warrant (incorporated by reference to Exhibit 4.21 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.22 |
|
Form of Series B Warrant (incorporated by reference to Exhibit 4.22 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.23 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.23 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.24 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.24 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.25+ |
|
Form of SenesTech, Inc. Stock Option Grant Notice and Stand-Alone Option Agreement (incorporated by reference to Exhibit 4.22 to the Registrant’s Registration Statement on Form S-8, filed with the SEC on February 10, 2023, Exhibit 4.2 (File no. 333-269686)) |
4.26+ |
|
Form of SenesTech, Inc. Restricted Stock Unit Grant Notice and Stand-Alone Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.23 to the Registrant’s Registration Statement on Form S-8, filed with the SEC on February 10, 2023 (File no. 333-269686)) |
4.27 |
|
Form of Series C Warrant (incorporated by reference to Exhibit 4.28 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 12, 2023 (File no. 001-037941)) |
Exhibit
Number |
|
Description |
4.28 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.29 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 12, 2023 (File no. 001-037941)) |
4.29 |
|
Form
of New Warrant (incorporated by reference to Exhibit 4.33 to the Registrant’s Current Report on Form 8-K, filed with the SEC
on August 22, 2023 (File no. 001-07941)) |
4.30* |
|
Form of Series D Warrant |
4.31* |
|
Form of Series E Warrant |
4.32* |
|
Form of Pre-Funded Warrant |
4.33* |
|
Form of Placement Agent Warrant |
5.1* |
|
Legal Opinion of Greenberg Traurig, LLP |
10.1+ |
|
SenesTech, Inc. 2015 Equity Incentive Plan and forms of agreement thereunder (incorporated by reference to Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1, filed with the SEC on September 21, 2016 (File no. 333-213736)) |
10.2+ |
|
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.6 to the Registrant’s Registration Statement on Form S-1, filed with the SEC on September 21, 2016 (File no. 333-213736)) |
10.3+ |
|
Employment Offer Letter by and between the Registrant and Thomas Chesterman dated November 20, 2015 (incorporated by reference to Exhibit 10.9 to the Registrant’s Registration Statement on Form S-1, filed with the SEC on September 21, 2016 (File no. 333-213736)) |
10.4+ |
|
Employment Letter Agreement by and between the Registrant and Kim Wolin dated January 28, 2020 (incorporated by reference to Exhibit 10.7 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on February 13, 2020 (File no. 333-236302)) |
10.5+ |
|
Employment Letter Agreement by and between the Registrant and Steven Krause, dated January 12, 2020 (incorporated by reference to Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K/A, filed with the SEC on April 20, 2020 (File no. 001-37941)) |
10.6 |
|
Promissory Note, dated April 15, 2020, by and between the Registrant and BMO Harris Bank National Association (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 21, 2020 (File No. 001-37941)) |
10.7+ |
|
Employment Letter Agreement by and between the Registrant and Kenneth Siegel dated May 16, 2019 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on May 20, 2019 (File no. 001-37941)) |
10.8 |
|
Lease by and between the Registrant and Pinnacle Campus Office-Retail, LLC, dated as of November 18, 2019 (incorporated by reference to Exhibit 10.16 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on February 13, 2020 (File no. 333-236302)) |
10.9 |
|
Standard Industrial/Commercial Multi-Tenant Lease, between the Registrant and Duke Go PP, LLC, dated as of June 22, 2020 (incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 13, 2020 (File no. 001-37941)) |
10.10 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 17, 2019 (File no. 001-37941)) |
10.11 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 28, 2020 (File no. 001-37941)) |
Exhibit
Number |
|
Description |
10.12 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 6, 2020 (File no. 001-37941)) |
10.13 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.19 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on February 13, 2020 (File no. 333-236302)) |
10.14 |
|
Form of Securities Purchase Agreement, dated as of April 21, 2020, between the Registrant and the purchaser thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 24, 2020 (File no. 001-37941)) |
10.15 |
|
Form of Letter Agreement, dated as of October 23, 2020, between the Registrant and the purchaser party thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2020 (File no. 001-37941)) |
10.16 |
|
Form of Securities Purchase Agreement, dated as of January 27, 2021 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File No. 001-37941)) |
10.17 |
|
Form of Registration Rights Agreement, dated as of January 27, 2021 (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File No. 001-37941)) |
10.18 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.18 to the Registrant’s Registration Statement on Form S-1, filed with the SEC on November 15, 2022, Exhibit 10.18 (File no. 333-267991)) |
10.19+ |
|
SenesTech, Inc. 2018 Equity Incentive Plan, as amended (incorporated by reference to Exhibit 10.28 to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 27, 2023 (File no. 001-37941)) |
10.19(a) |
|
Form of SenesTech, Inc. Stock Option Grant Notice and Option Agreement (incorporated by reference to Exhibit 10.23A to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 14, 2022 (File no. 001-37941)) |
10.19(b) |
|
Form of SenesTech, Inc. Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.23B to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 14, 2022 (File no. 001-37941)) |
10.20 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 23, 2021 (File no. 001-37941)) |
10.21+ |
|
Employment Offer Letter by and between the Registrant and Nicole Williams dated May 1, 2021 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 5, 2022 (File no. 001-37941)) |
10.22+ |
|
Employment Letter Agreement between SenesTech, Inc. and Joel Freundt dated November 9, 2022 (incorporated by reference to Exhibit 10.24 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 14, 2022 (File no. 001-37941)) |
10.23+ |
|
Separation Agreement, by and between SenesTech, Inc. and Kenneth Siegel, dated December 29, 2022 (incorporated by reference to Exhibit 10.25 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 5, 2023 (File no. 001-37941)) |
10.24 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.26 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 12, 2023 (File no. 001-37941)) |
Exhibit Number |
|
Description |
10.25+ |
|
Separation Agreement, by and between the Registrant and Nicole Williams, dated April 21, 2023 (incorporated by reference to Exhibit 10.27 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 24, 2023 (File no. 001-37941)) |
10.26 |
|
Form
of Inducement Letter, dated August 21, 2023 (incorporated by reference to Exhibit 10.29 to the Registrant’s Current Report
on Form 8-K, filed with the SEC on August 22, 2023 (File no. 001-37941)) |
10.27* |
|
Form
of Securities Purchase Agreement |
21.1 |
|
List of Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 29, 2022 (File no. 001-37942)) |
23.1* |
|
Consent
of M&K CPAS, PLLC, independent registered public accounting firm |
23.2* |
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
24.1† |
|
Power of Attorney |
107† |
|
Filing Fee Table |
| + | Indicates a management contract or compensatory plan. |
| (b) | Financial Statement Schedules |
No financial statement schedules are provided
because the information called for is not required or is shown either in the financial statements or the notes thereto.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
| (i) | To include any prospectus required by Section 10(a)(3)
of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and |
| (iii) | To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement. |
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities
Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part
of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) For the purpose of determining liability
of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, that in a primary offering
of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned
registrant; and |
| (iv) | Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser. |
(6) For purposes of determining any liability
under the Securities Act:
| (i) | The information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective. |
| (ii) | Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof. |
(b) The undersigned hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Phoenix, State of Arizona, on the 22nd day of November, 2023.
|
SENESTECH, INC. |
|
|
|
|
By: |
/s/ Joel L. Fruendt |
|
|
Joel L. Fruendt |
|
|
President and Chief Executive Officer |
Pursuant
to the requirements of the Securities Act, this Amendment No. 1 to the Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Joel
L. Fruendt |
|
President, Chief Executive Officer and Director |
|
November 22, 2023 |
Joel L. Fruendt |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Thomas
C. Chesterman |
|
Executive Vice President, Chief Financial Officer, |
|
November 22, 2023 |
Thomas C. Chesterman |
|
Treasurer and Assistant Secretary
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Chair of the Board |
|
November 22, 2023 |
Jamie Bechtel |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November 22, 2023 |
Delphine François Chiavarini |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November 22, 2023 |
Phil Grandinetti |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November 22, 2023 |
Jake Leach |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November 22, 2023 |
Matthew K. Szot |
|
|
|
|
* By: |
/s/ Thomas
C. Chesterman |
|
|
Thomas C. Chesterman |
|
|
Attorney-in-Fact |
|
II-10
Exhibit 4.30
SERIES D COMMON STOCK PURCHASE WARRANT
senestech,
inc.
Warrant Shares: _______ | Issue Date: ______, 2023 |
| |
| Initial Exercise Date: _______, 2023 |
THIS SERIES D COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the earlier of (i) if permissible by the applicable rules and regulations of the Nasdaq Stock Market, payment by the Holder of $0.125
per Warrant Share (as defined below) (which is payable in addition to the applicable Exercise Price (as defined below)), and (ii) the
Shareholder Approval Date (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York
City time) on ______________1 (the “Termination
Date”) but not thereafter, to subscribe for and purchase from SenesTech, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1
The date that is the five (5) year anniversary of the Initial Exercise Date, provided that, if such date is not a Trading
Day, insert the immediately following Trading Day.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-273370) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Warrants and the
Warrant Shares, among others, to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shareholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from
the shareholders of the Company with respect to issuance of all of the Warrants and the Warrant Shares upon the exercise thereof.
“Shareholder Approval
Date” means the date on which Shareholder Approval is received and deemed effective.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Transfer Online, Inc., the current transfer agent of the Company, with a mailing address of 512 SE Salmon Street, Portland, Oregon
97214, and an email address of tsipe@transferonline.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice
of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number
of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one
(1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[___], subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance or resale of the Warrant Shares to or by the Holder, then this Warrant may also be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg as
of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) two (2) Trading Days and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of
Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number
of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as
a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder
shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion),
at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of
the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which
Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period most equivalent to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and 100 day
volatility obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately
following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation
shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration,
if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately
preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if
earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time equal
to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero
cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five (5) Trading
Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause
any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the
provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved
by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the
Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or
its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to
any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to
such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price
being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction),
and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the
other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property,
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company,
then, in each case, the Company shall cause to be delivered by email to the Holder at its email address as it shall appear upon the Warrant
Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall promptly file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
g) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the Board of Directors of the Company.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with the Securities Act and any other applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive
the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle
an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to
exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully
and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall
pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 23460 N 19TH Ave., Suite 110, Phoenix, Arizona 85027, Attention: Thomas Chesterman, Chief Financial Officer,
email address: Tom.Chesterman@senestech.com, or such other email address or address as the Company may specify for such purposes by notice
to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing
and delivered personally by e-mail or sent by a nationally recognized overnight courier service addressed to the Holder at the e-mail
address or address of the Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail
at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the
time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day
that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. To the extent that any notice provided by the Company hereunder constitutes, or contains, material, non-public
information regarding the Company or any subsidiaries, the Company shall promptly file such notice with the Commission pursuant to a Current
Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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NOTICE OF EXERCISE
To: SENESTECH,
INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in
lawful money of the United States; or
☐ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ___________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: _____________________________________________________
Name of Authorized Signatory: _______________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________
Date: ___________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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Dated: _______________ __, ______ |
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Exhibit 4.31
SERIES E COMMON STOCK PURCHASE WARRANT
senestech,
inc.
Warrant Shares: _______ | |
Issue Date:______, 2023 |
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Initial Exercise Date: _______, 2023 |
THIS SERIES E COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the earlier of (i) if permissible by the applicable rules and regulations of the Nasdaq Stock Market, payment by the Holder of $0.125
per Warrant Share (as defined below) (which is payable in addition to the applicable Exercise Price (as defined below)), and (ii) the
Shareholder Approval Date (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York
City time) on ______________1 (the “Termination
Date”) but not thereafter, to subscribe for and purchase from SenesTech, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1 The date that is
eighteen (18) months from the Initial Exercise Date, provided that, if such date is not a Trading Day, insert the immediately following
Trading Day.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-273370) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Warrants and the
Warrant Shares, among others, to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shareholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from
the shareholders of the Company with respect to issuance of all of the Warrants and the Warrant Shares upon the exercise thereof.
“Shareholder Approval
Date” means the date on which Shareholder Approval is received and deemed effective.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Transfer Online, Inc., the current transfer agent of the Company, with a mailing address of 512 SE Salmon Street, Portland, Oregon
97214, and an email address of tsipe@transferonline.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice
of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number
of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one
(1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[___], subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance or resale of the Warrant Shares to or by the Holder, then this Warrant may also be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg as
of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) two (2) Trading Days and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of
Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number
of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as
a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder
shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion),
at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of
the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which
Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period most equivalent to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100
day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day
immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such
calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration,
if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately
preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if
earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time equal
to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero
cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five (5) Trading
Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause
any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the
provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved
by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the
Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or
its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to
any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to
such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price
being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction),
and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the
other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property,
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company,
then, in each case, the Company shall cause to be delivered by email to the Holder at its email address as it shall appear upon the Warrant
Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall promptly file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
g) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the Board of Directors of the Company.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with the Securities Act and any other applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive
the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle
an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to
exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully
and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall
pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 23460 N 19TH Ave., Suite 110, Phoenix, Arizona 85027, Attention: Thomas Chesterman, Chief Financial Officer,
email address: Tom.Chesterman@senestech.com, or such other email address or address as the Company may specify for such purposes by notice
to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing
and delivered personally by e-mail or sent by a nationally recognized overnight courier service addressed to the Holder at the e-mail
address or address of the Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail
at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the
time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day
that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. To the extent that any notice provided by the Company hereunder constitutes, or contains, material, non-public
information regarding the Company or any subsidiaries, the Company shall promptly file such notice with the Commission pursuant to a Current
Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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NOTICE OF EXERCISE
To: SENESTECH,
INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in
lawful money of the United States; or
☐ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ___________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: _____________________________________________________
Name of Authorized Signatory: _______________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________
Date: ___________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
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Dated: _______________ __, ______ |
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Exhibit 4.32
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
SENESTECH,
INC.
Warrant Shares: _______ |
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Issue Date:______, 2023 |
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Initial Exercise Date: _______, 2023 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date set forth above (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from SenesTech, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally open for use by customers
on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-273370) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Warrants and the
Warrant Shares, among others, to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Transfer Online, Inc., the current transfer agent of the Company, with a mailing address of 512 SE Salmon Street, Portland, Oregon
97214, and an email address of tsipe@transferonline.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice
of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number
of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one
(1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which
the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1)
both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading
Market as reported by Bloomberg as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of
Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including
until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii)
the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise
is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading
Day;
(B) = the Exercise
Price of this Warrant, as adjusted hereunder; and
(X) = the number
of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) two (2) Trading Days and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of
Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number
of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as
a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the
consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence
of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of
such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property,
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company,
then, in each case, the Company shall cause to be delivered by email to the Holder at its email address as it shall appear upon the Warrant
Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall promptly file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
g) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of
this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the Board of Directors of the Company.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with the Securities Act and any other applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive
the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle
an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages
to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but
not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts
due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 23460 N 19TH Ave., Suite 110, Phoenix, Arizona 85027, Attention: Thomas Chesterman, Chief Financial Officer, email
address: Tom.Chesterman@senestech.com, or such other email address or address as the Company may specify for such purposes by notice to
the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and
delivered personally by e-mail or sent by a nationally recognized overnight courier service addressed to the Holder at the e-mail address
or address of the Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading
Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be
given. To the extent that any notice provided by the Company hereunder constitutes, or contains, material, non-public information regarding
the Company or any subsidiaries, the Company shall promptly file such notice with the Commission pursuant to a Current Report on Form
8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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SENESTECH, INC. |
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By: |
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Name: |
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Title: |
NOTICE OF EXERCISE
To: SENESTECH,
INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in
lawful money of the United States; or
☐ the
cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to
exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
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Signature of Authorized Signatory of Investing Entity:
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature: |
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Holder’s Address: |
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Exhibit 4.33
PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT
senestech,
inc.
Warrant Shares: _______ |
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Issue Date: ______, 2023 |
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Initial Exercise Date: _______, 2023 |
THIS PLACEMENT AGENT COMMON
STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the earlier of (i) if permissible by the applicable rules and regulations of the Nasdaq Stock Market, payment by the Holder of $0.125
per Warrant Share (as defined below) (which is payable in addition to the applicable Exercise Price (as defined below)), and (ii) the
Shareholder Approval Date (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City
time) on ______________1 (the “Termination
Date”) but not thereafter, to subscribe for and purchase from SenesTech, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This
Warrant is being issued pursuant to that certain Engagement Agreement by and between the Company and H.C. Wainwright & Co., LLC, dated
as of August 29, 2022, as amended on October 21, 2022 and November 11, 2022.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”)
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
| 1 | The date that is the five (5) year anniversary of the commencement
of sales. |
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration Statement”
means the effective registration statement on Form S-1 (File No. 333-273370) filed with the Commission, including all information, documents
and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Warrants and the
Warrant Shares, among others, to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shareholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from
the shareholders of the Company with respect to issuance of all of the Warrants and the Warrant Shares upon the exercise thereof.
“Shareholder Approval
Date” means the date on which Shareholder Approval is received and deemed effective.
“Subsidiary”
means the subsidiaries of the Company set forth on Exhibit 21.1 to the Registration Statement and shall, where applicable, also
include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Transfer Online, Inc., the current transfer agent of the Company, with a mailing address of 512 SE Salmon Street, Portland, Oregon
97214, and an email address of tsipe@transferonline.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares
specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless
exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case,
the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice
of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number
of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one
(1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[___]
2, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance or resale of the Warrant Shares to or by the Holder, then this Warrant may also be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
| 2 | Exercise price to be 125% of the offering price. |
(B) = the Exercise
Price of this Warrant, as adjusted hereunder; and
(X) = the number
of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything
herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this
Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (A) the earlier of (i) two (2) Trading Days and (ii) the number of days comprising the Standard Settlement Period, in each case after the delivery to the Company of the Notice of Exercise and (B) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held
by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will
not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend (other than
cash) or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of
capital or otherwise (including, without limitation, any distribution of stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the
beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as
a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that if the Fundamental Transaction is not within the Company's control, including not approved by the Company's Board of Directors, Holder
shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion),
at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of
the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which
Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period most equivalent to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and 100 day
volatility obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately
following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation
shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration,
if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately
preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if
earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time equal
to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero
cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five (5) Trading
Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause
any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the
provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved
by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the
Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or
its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to
any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to
such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price
being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction),
and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the
other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property,
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company,
then, in each case, the Company shall cause to be delivered by email to the Holder at its email address as it shall appear upon the Warrant
Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall promptly file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with the Securities Act and any other applicable securities laws, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive
the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle
an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding to enforce any provisions of
this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to
exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully
and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall
pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally by e-mail or sent by a nationally recognized overnight courier service, addressed
to the Company, at 23460 N 19TH Ave., Suite 110, Phoenix, Arizona 85027, Attention: Thomas Chesterman, Chief Financial Officer,
email address: Tom.Chesterman@senestech.com, or such other email address or address as the Company may specify for such purposes by notice
to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing
and delivered personally by e-mail or sent by a nationally recognized overnight courier service addressed to the Holder at the e-mail
address or address of the Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail
at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the
time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day
that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. To the extent that any notice provided by the Company hereunder constitutes, or contains, material, non-public
information regarding the Company or any subsidiaries, the Company shall promptly file such notice with the Commission pursuant to a Current
Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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SENESTECH, INC. |
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By: |
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Name: |
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Title: |
NOTICE OF EXERCISE
To: SENESTECH,
INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in
lawful money of the United States; or
☐ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
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Signature of Authorized Signatory of Investing Entity:
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ |
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Holder’s Signature: |
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Holder’s Address: |
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Exhibit 5.1
November 22, 2023
SenesTech, Inc.
23460 N. 19th Avenue, Suite 110
Phoenix, Arizona 85027
Re: | Registration Statement on Form S-1
SenesTech, Inc. |
Ladies and Gentlemen:
We have acted as counsel
to SenesTech, Inc., a Delaware corporation (the “Company”), in connection with its filing of (i) a Registration
Statement on Form S-1 (Registration No. 333-273370) under the Securities Act of 1933, as amended (the “Act”), with the
Securities and Exchange Commission (the “Commission”) (the “Registration Statement”), and (ii) the related
prospectus contained therein (the “Prospectus”). The Prospectus relates to the public offering by the
Company of shares (“Shares”) of the Company’s common stock, par value $0.001 per share
(the “Common Stock”) each accompanied by a Series D Warrant to purchase one share of Common Stock (“Series D
Warrant Share”), and by a Series E Warrant to purchase one share of Common Stock (“Series E Warrant Share”). The
Series D Warrants and the Series E Warrants are collectively referred to herein as the “Series Warrants.” The Series D
Warrant Shares and the Series E Warrant Shares are collectively referred to as the “Series Warrant Shares.” The Company
is also offering to those purchasers, if any, whose purchase of our Common Stock in this offering would otherwise result in such
purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the
purchaser, 9.99%) of the outstanding Common Stock immediately following the consummation of this offering, the opportunity, in lieu
of purchasing Common Stock, to purchase pre-funded warrants (the “Pre-Funded Warrants”) to purchase
shares of our Common Stock (the “Pre-Funded Warrant Shares”). Each Pre-Funded warrant will be issued together with the
same Series Warrants. For each Pre-Funded Warrant and accompanying Series Warrants purchased in this offering in lieu of Common
Stock, the Company will reduce the number of Shares of Common Stock being sold in the offering by one. In addition, the Company will
issue, pursuant to the engagement agreement, dated as of August 29, 2022 and amended October 21, 2022 and November 11, 2022 (the
“Placement Agent Engagement”), between the Company and H.C. Wainwright & Co., LLC, as placement agent (the
“Placement Agent”), certain placement agent warrants to purchase shares of Common Stock (the
“Placement Agent Warrants”). The shares of Common Stock issuable upon exercise of the Placement Agent Warrants are
referenced as “Placement Agent Warrant Shares.” The Shares, the Series Warrants, the Series Warrant Shares, the
Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Placement Agent Warrants and the Placement Agent Warrant Shares are
collectively referred to herein as the “Securities.”
The Shares, the Series Warrants
and the Pre-Funded Warrants are to be sold pursuant to securities purchase agreements among the Company and the certain purchasers named
therein (the “Purchase Agreements”). This opinion is being furnished in connection with the requirements of Item 601(b)(5)
of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement
or the Prospectus, other than as expressly stated herein with respect to the issuance of the Securities.
We have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
The opinions expressed herein are limited to the General Corporation Law of the State of Delaware and, as to the Warrants constituting
valid and binding obligations of the Company, the laws of the State of New York. We express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction. We express no opinion herein concerning any state securities or blue sky
laws.
Greenberg Traurig, LLP | Attorneys at Law 2375 East Camelback Road | Suite 800 | Phoenix, Arizona 85016 | T +1 602.445.8000 | F +1 602.445.8100 |
www.gtlaw.com |
SenesTech, Inc.
November 22, 2023
Page 2
In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents
and the legal competence of all signatories to such documents.
Based upon the foregoing,
and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that: (i) the Shares
have been duly authorized for issuance, and when issued against payment therefor pursuant to the terms of the Purchase Agreements, will
be validly issued, fully paid and non-assessable; (ii) the Series Warrants have been duly authorized and, when issued, delivered and paid
for in accordance with the terms of the Purchase Agreements, will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms; (iii) the Pre-Funded Warrants have been duly authorized for issuance and, when issued
and sold against payment therefor in accordance with the terms of the Pre-Funded Warrants, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms; (iv) the Series Warrant Shares have been duly authorized
for issuance and, when issued and sold against payment therefor in accordance with the terms of the Series Warrants, will be validly issued,
fully paid and nonassessable; (v) the Placement Agent Warrants have been duly authorized and, when issued and delivered in accordance
with the terms of the Placement Agent Engagement, will constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms; and (vi) the Placement Agent Warrant Shares have been duly authorized for issuance and, when issued
and sold against payment therefor in accordance with the terms of the Placement Agent Warrants, will be validly issued, fully paid and
nonassessable.
The opinions in clauses (ii),
(iii) and (v) above are subject to (a) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting the rights and remedies of creditors’ generally, including without limitation the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers, and (b) general principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable
remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
Please note that we are opining
only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon
currently existing statutes, rules, regulations and judicial decisions, as further limited above, and we disclaim any obligation to advise
you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions
set forth herein.
This opinion is rendered to
you in connection with the offering described above.
We hereby consent to the filing
of this opinion with the Commission as an exhibit to Registration Statement being filed on the date hereof and to the reference to our
firm in the Prospectus and the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Greenberg Traurig, LLP |
Greenberg Traurig, LLP | Attorneys at Law |
www.gtlaw.com |
Exhibit 10.27
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of [______________], 2023, between SenesTech, Inc., a Delaware corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below),
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the 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 United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common
Warrants” means, collectively, the Series D Common Warrants and the Series E Common Warrants.
“Common
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Common Warrants.
“Company
Counsel” means Greenberg Traurig, LLP, with offices located at 2375 E. Camelback Rd., Suite 800, Phoenix, AZ 85016.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof,
unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, options restricted stock or restricted stock units to employees,
officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for
services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, warrants
to the Placement Agent in connection with the transactions pursuant to this Agreement and any securities upon exercise of warrants to
the Placement Agent and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number
of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection
with stock splits or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic
transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement
in connection therewith during the prohibition period in Section 4.11(a) herein, and provided that any such issuance shall only be to
a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities, and (d) up to $_______ of Securities issued to other purchasers pursuant
to the Prospectus concurrently with the Closing.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” means, collectively, the Lock-Up Agreements, dated as of the date hereof, by and among the Company and the directors
and officers, in the form of Exhibit B attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share
Purchase Price” equals $_____, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement, provided that the purchase price per Prefunded
Warrant shall be the Per Share Purchase Price minus $0.0001.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means H.C. Wainwright & Co., LLC.
“Prefunded
Warrant” means, collectively, the Pre-Funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Prefunded Warrants shall be exercisable immediately and shall expire when exercised in full, in the
form of Exhibit A-3 attached hereto.
“Prefunded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Prefunded Warrants.
“Preliminary
Prospectus” means any preliminary prospectus included in the Registration Statement, as originally filed or as part of any amendment
thereto, or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities Act.
“Pricing
Prospectus” means (i) the Preliminary Prospectus relating to the Securities that was included in the Registration Statement
immediately prior to [___] a.m./p.m. (New York City time) on the date hereof and (ii) any free writing prospectus (as defined in the Securities
Act) identified on Schedule A hereto, taken together.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed pursuant to the Registration Statement, including all information, documents and exhibits filed with
or incorporated by reference into such base prospectus.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement on Form S-1 (File No. 333-273370) filed with the Commission, including
all information, documents and exhibits filed with or incorporated by reference into such registration statement, which registers the
sale of the Shares, the Warrants and the Warrant Shares to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b)
Registration Statement” means any registration statement prepared by the Company registering additional Securities, which was
filed with the Commission on or prior to the time at which sales of the Shares and the Warrants were confirmed and became automatically
effective pursuant to Rule 462(b) promulgated by the Commission pursuant to the Securities Act.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series
D Common Warrants” means, collectively, the Series D Common Stock Purchase Warrants to purchase shares of Common Stock delivered
to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Series D Common Warrants shall be exercisable on the
earlier of (i) if permissible by the applicable rules and regulations of the Nasdaq Stock Market, payment by the Purchasers of $0.125
per share (as defined below) (which is payable in addition to the applicable exercise price of such Series D Common Warrants), and (ii)
the Shareholder Approval Date, and have a term equal to five (5) years, in the form of Exhibit A-1 attached hereto.
“Series
D Warrant Shares” means the shares of Common Stock issuable upon exercise of the Series D Common Warrants.
“Series
E Common Warrants” means, collectively, the Series E Common Stock Purchase Warrants to purchase shares of Common Stock delivered
to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Series E Common Warrants shall be exercisable on the
earlier of (i) if permissible by the applicable rules and regulations of the Nasdaq Stock Market, payment by the Purchasers of $0.125
per share (as defined below) (which is payable in addition to the applicable exercise price of such Series E Common Warrants), and (ii)
the Shareholder Approval Date, and have a term equal to eighteen (18) months, in the form of Exhibit A-2 attached hereto.
“Series
E Warrant Shares” means the shares of Common Stock issuable upon exercise of the Series E Common Warrants.
“Shareholder
Approval” means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any
successor entity) from the shareholders of the Company with respect to issuance of all of the Common Warrants and the Common Warrant Shares
upon the exercise thereof.
“Shareholder
Approval Date” means the date on which Shareholder Approval is received and deemed effective.
“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 and Warrants purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in
United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreements, the Warrants, all exhibits and schedules thereto and hereto and any
other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Transfer Online, Inc., the current transfer agent of the Company, with a mailing address of 512 SE Salmon Street,
Portland, Oregon 97214, and an email address of tsipe@transferonline.com, and any successor transfer agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
“Warrants”
means, collectively, the Common Warrants and the Prefunded Warrants.
“Warrant
Shares” means, collectively, the Series D Warrant Shares, the Series E Warrant Shares and the Prefunded Warrant Shares.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
up to an aggregate of $____________ of Shares and Common Warrants; provided, however, that, to the extent that a Purchaser
determines, in its sole discretion, that 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 in excess of the Beneficial Ownership
Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Prefunded Warrants
in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company, less $0.0001
per Prefunded Warrant purchased. The “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the Purchaser
at Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the Securities
on the Closing Date. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall
be made available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to
each Purchaser its respective Shares and/or Prefunded Warrants (as applicable to such Purchaser) and Common Warrants as determined pursuant
to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing.
Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall take place remotely by electronic
transfer of the Closing documentation. Each Purchaser acknowledges that, concurrently with the Closing and pursuant to the Prospectus,
the Company may sell up to $______ of additional Shares and Warrants to purchasers not party to this Purchase Agreement, and will issue
to each such purchaser such additional Shares and Warrants in the same form and at the same Per Share Purchase Price, as issued to a Purchaser
hereunder. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment”
(“DVP”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and
addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt
of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor
shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Notwithstanding anything herein to the contrary,
if at any time on or after the time of execution and delivery of this Agreement by the Company and an applicable Purchaser, through, and
including the time immediately prior to the Closing (the “Pre-Settlement Period”), if such Purchaser sells to any Person
all, or any portion, of the Shares to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement
Shares”), such Purchaser shall, automatically hereunder (without any additional required actions by such Purchaser or the Company),
be deemed to be unconditionally bound to purchase, and the Company shall be deemed unconditionally bound to sell, such Pre-Settlement
Shares to such Purchaser at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement Shares to such
Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder; provided, further, that
the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser as to
whether or not such Purchaser will elect to sell any Pre-Settlement Shares during the Pre-Settlement Period. Notwithstanding the foregoing,
with respect to any Notice(s) of Exercise (as defined in the Warrants) delivered on or prior to 12:00 p.m. (New York City time) on the
Closing Date, which may be delivered at any time after the time of execution of the this Agreement, the Company agrees to deliver the
Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the Warrant
Share Delivery Date (as defined in the Warrants) for purposes hereunder.
2.2 Deliveries.
(a) On
or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, directed to the Placement Agent and the Purchasers, in a form reasonably acceptable to the Placement
Agent and Purchasers;
(iii) subject
to Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed
by the Chief Executive Officer or Chief Financial Officer;
(iv) subject
to Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited
basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s
Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser (minus the number of shares of Common
Stock issuable upon exercise of such Purchaser’s Prefunded Warrants, if applicable);
(v) a
Series D Common Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to ___% of
the sum of such Purchaser’s Shares and Prefunded Warrant Shares, with an exercise price equal to $___, subject to adjustment therein;
(vi) a
Series E Common Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to ___% of
the sum of such Purchaser’s Shares and Prefunded Warrant Shares, with an exercise price equal to $___, subject to adjustment therein;
(vii) for
each Purchaser of Prefunded Warrants pursuant to Section 2.1, a Prefunded Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to the Prefunded
Warrants divided by the Per Share Purchase Price, with an exercise price equal to $0.0001, subject to adjustment therein;
(viii) the
Lock-Up Agreements, dated as of the date hereof; and
(ix) the
Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount (minus, if applicable, a Purchaser’s aggregate exercise price of the Prefunded Warrants, which
amounts shall be paid as and when such Prefunded Warrants are exercised for cash), which shall be made available for “Delivery Versus
Payment” settlement with the Company or its designee.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) on the
Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case
they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality, in all
respects) as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in
the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or
upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute
the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets
of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing
a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property
or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in
a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not
have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Pricing Prospectus and the Prospectus,, (iii) application(s)
to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time and manner required
thereby, (iv) Shareholder Approval, if applicable, and (v) such filings as are required to be made under applicable state securities laws
(collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free
and clear of all Liens imposed by the Company. The Company has prepared and filed the Registration Statement in conformity with the requirements
of the Securities Act, which became effective on [ ], 2023, including the Pricing Prospectus and the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this Agreement. The Company was at the time of the filing of the Registration
Statement eligible to use Form S-1. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending
the effectiveness of the Registration Statement or suspending or preventing the use of each of the Pricing Prospectus or the Prospectus
has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened
in writing by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with
the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date
of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Pricing Prospectus
and the Prospectus and any amendments or supplements thereto, at the time the Pricing Prospectus or the Prospectus, as applicable, or
any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements
of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
Except as set forth on Schedule 3.1(g), the Company has not issued any capital stock since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion
and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act.
No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth on Schedule 3.1(g), there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Purchasers). There are no outstanding securities or instruments of the Company or any Subsidiary with any provision
that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company
or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities
laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and
sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, together with the Pricing Prospectus and the
Prospectus, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and
none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i) or as disclosed in the SEC Reports, (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to
GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements
to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director
or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request
for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on
Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected
to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets
or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse
Effect.
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into
the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of
any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal,
state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions
With Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any
transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules
and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company
and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the
Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company
and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report
under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic
report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or
is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except as set forth in the Pricing Prospectus or the Prospectus, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(v) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic
transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the
fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Pricing Prospectus
or the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and
its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement,
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press releases
disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no
Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth in Section 3.2 hereof.
(z) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither
the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on
which any of the securities of the Company are listed or designated.
(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as
now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the
business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into
account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts
are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement,
“Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade
accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect
of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the
notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary
course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb) Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and
franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(cc) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(dd) of the Disclosure Schedules. To the knowledge and belief of
the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2023.
(ee) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
(ff) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding,
it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any
Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities
based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other
transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before
or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser
is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall
not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during
the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares
deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing
stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company
acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
(gg) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement
of the Securities and compensation paid to underwriters and/or placement agents in connection with prior offerings of the Company’s
securities, in each case as set forth in the SEC Reports.
(hh) Reserved.
(ii) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information
technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are
presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as
would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented
and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster
recovery technology consistent with industry standards and practices.
(jj) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with
the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common
Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(kk) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”).
(ll) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(mm) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(nn) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8),
(a)(9), (a)(12), or (a)(13) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the
Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the
Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance
of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary
to such Purchaser.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on
the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or
similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance
or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise
shall be issued free of all legends. If at any time following the date hereof the Registration Statement (or any subsequent registration
statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale
of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is
not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available
for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company
to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws). The Company
shall use best efforts to keep a registration statement (including the Registration Statement) registering the issuance or resale of the
Warrant Shares effective during the term of the Warrants.
4.2 Furnishing
of Information. Until the earlier of the time that (i) no Purchaser owns Securities or (ii) the Common Warrants have expired, the
Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required
to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting
requirements of the Exchange Act.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of
any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval
is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including, without
limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers or any of their Affiliates
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Purchaser shall
be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company (other than the press release described in the first sentence of this Section 4.4), which consent shall not unreasonably
be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose
the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing
of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b) and reasonably
cooperate with such Purchaser regarding such disclosure.
4.5 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material 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 in writing to the receipt of such information
and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any
of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not
have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries or any of their respective
officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall contemporaneously with the delivery of such notice file such information 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. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the
Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s
debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption
of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC
regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners
or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of
or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this
Agreement or in the other Transaction Documents, or (b) any action instituted against the Purchaser Parties in any capacity (including
a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder of
the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the
Transaction Documents (unless such action is solely based upon a material breach of any of the representations, warranties or covenants
under the Transaction Documents or any violations made by such Purchaser Party if state or federal securities laws or any conduct by a
Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall
be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to
the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after
a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of
counsel to the applicable Purchaser Party (which may be internal counsel), a material conflict on any material issue between the position
of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable, actual and
documented fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this
Agreement for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed. 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, however that if it is subsequently
determined by a final non-appealable judgment of a court of competent jurisdiction that a Purchaser Party is not entitled to indemnification
or payment under this Section 4.8, such Purchaser Party shall promptly return to the Company such payments. The indemnity agreements contained
herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to law.
4.9 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares
pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use 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 Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on
such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it
will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all
of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take
all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects
with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to
maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer. In addition, the Company shall hold an annual or special meeting of shareholders
on or prior to the date that is ninety (90) days following the Closing Date for the purpose of obtaining Shareholder Approval, with the
recommendation of the Company’s Board of Directors that such proposals are approved, and the Company shall solicit proxies from
its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed
proxyholders shall vote their proxies in favor of such proposals. If the Company does not obtain Shareholder Approval at the first meeting,
the Company shall call a meeting every ninety (90) days thereafter to seek Shareholder Approval until the earlier of the date on which
Shareholder Approval is obtained or the Common Warrants are no longer outstanding. The Company shall set the record date for the Shareholder
Approval prior to the Closing Date.
4.11 Subsequent
Equity Sales.
(a) From
the date hereof until ninety (90) days following the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into
any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, or (ii)
file any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement on Form
S-8 in connection with any employee benefit plan.
(b) From
the date hereof until one (1) year following the Closing Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to
receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based
upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such
debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after
the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities
at a future determined price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled; provided, however, that, after six (6) months following the Closing Date, the issuance
of shares of Common Stock in an “at the market” offering with H.C. Wainwright & Co., LLC as sales agent shall not be deemed
a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance,
which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
4.12 Equal
Treatment of Purchasers. No consideration (including any modification of 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 the 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 Securities or otherwise.
4.13 Capital
Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification
of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the Shares, other than a stock
split that, in the good faith determination of the Board of Directors, is required to enable the Company to comply with the required listing
standards of the Company’s principal Trading Market or with the initial listing requirements of another Trading Market.
4.14 Exercise
Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the Purchasers
in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers
to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall
any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the
Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions
and time periods set forth in the Transaction Documents.
4.15 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to
a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance
of the terms of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated (a) 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, or (b) by the Company
by written notice to the Purchasers, if, in either case, the Closing has not been consummated on or before the fifth (5th)
Trading Day following the date hereof; provided, however, that no such termination will affect the right of any party to
sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Pricing Prospectus and the Prospectus,
contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email
attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares and Prefunded Warrants
based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver,
by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers)
shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser
relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected
Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and
the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by
the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company
in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section
4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of an exercise
of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice
concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration
of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement
warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
Haynes and Boone, LLP. Haynes and Boone, LLP does not represent any of the Purchasers and only represents the Placement Agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
5.19 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY UNDER THE TRANSACTION
DOCUMENTS, 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.
SENESTECH, INC. | |
Address for Notice: |
| |
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By: |
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Name: | |
E-Mail: |
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Title: | |
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With a copy to (which shall not constitute notice): |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO snes
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory: _________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Shares: _________________
Prefunded Warrant Shares: ___________ Beneficial Ownership Blocker
o 4.99% or o 9.99%
Series D Warrant Shares: __________________ Beneficial Ownership Blocker
o 4.99% or o 9.99%
Series E Warrant Shares: __________________ Beneficial Ownership Blocker
o 4.99% or o 9.99%
EIN Number: ____________________
o
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.
36
Exhibit 23.1
CONSENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent
to the inclusion in this Amendment No. 1 to the Registration Statement on Form S-1, registration no. 333-273370, of our report dated
March 16, 2023, of SenesTech, Inc. relating to the audit of the financial statements for the period ending December 31, 2022 and
2021 and the reference to our firm under the caption “Experts” in the Registration Statement.
/s/ M&K CPAS, PLLC |
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www.mkacpas.com |
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Houston, Texas |
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November 22, 2023
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