Form 8-K
8-K — iSpecimen Inc.
Accession: 0001213900-26-055912
Filed: 2026-05-13
Period: 2026-05-08
CIK: 0001558569
SIC: 8731 (SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH)
Item: Entry into a Material Definitive Agreement
Item: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
Item: Unregistered Sales of Equity Securities
Item: Regulation FD Disclosure
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — ea0290143-8k_ispecimen.htm (Primary)
EX-4.1 — FORM OF PRE-FUNDED WARRANT (ea029014301ex4-1.htm)
EX-10.1 — FORM OF SECURITIES PURCHASE AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND THE INVESTORS (ea029014301ex10-1.htm)
EX-10.2 — FORM OF REGISTRATION RIGHTS AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND THE INVESTORS (ea029014301ex10-2.htm)
EX-10.3 — FORM OF PLACEMENT AGENT AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND E.F. HUTTON & CO. (ea029014301ex10-3.htm)
EX-99.1 — PRESS RELEASE DATED MAY 8, 2026 (ea029014301ex99-1.htm)
GRAPHIC (ea029014301_ex4-1img1.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — CURRENT REPORT
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
May 8, 2026
iSpecimen Inc.
(Exact name of registrant as specified in its
charter)
Delaware
001-40501
27-0480143
(State or other jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
8 Cabot Road, Suite 1800
Woburn, MA 01801
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (781) 301-6700
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.0001 per share
ISPC
The Nasdaq
Stock Market LLC
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive
Agreement.
On May 8, 2026, iSpecimen Inc., a Delaware corporation
(Nasdaq: ISPC) (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain
accredited investors (the “Investors”), pursuant to which the Company agreed to issue and sell 488,281 shares of the Company’s
common stock, par value $0.0001 per share (the “Common Stock” or “Shares”), at a purchase price of $5.12 per Share.
In lieu of Shares that would otherwise result in a purchaser’s beneficial ownership exceeding 4.99% of the number of shares of Common
Stock outstanding immediately after giving effect to the issuance of such Shares, certain purchasers may elect to receive pre-funded warrants
(the “Pre-Funded Warrants”) at a purchase price of $5.1199 per Pre-Funded Warrant (equal to the per Share purchase price less
$0.0001). Each Pre-Funded Warrant is exercisable immediately upon issuance for one share of Common Stock at an exercise price of $0.0001
per share and will remain exercisable until exercised in full. The shares of Common Stock issuable upon exercise of the Pre-Funded Warrants
are referred to herein as the “Warrant Shares.”
Pursuant to the Purchase Agreement, on May 11,
2026, the Company issued and sold an aggregate of 85,202 Shares at a purchase price of $5.12 per Share and 403,088 Pre-Funded Warrants
to purchase 403,088 shares of the Company’s common stock at a purchase price of $5.1199 per Pre-Funded Warrant (equal to the per
Share purchase price less $0.0001), in lieu of Shares that would otherwise result in a purchaser’s beneficial ownership exceeding
4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of such Shares, for aggregate
gross proceeds of approximately $2.5 million at the closing (the “Closing”), before deducting fees payable to the placement
agent and other offering expenses payable by the Company. The Company intends to use the net proceeds from the Offering for working capital
purposes, including up to $900,000 in marketing expenses.
Pursuant to the terms of the Purchase Agreement,
the aggregate number of shares of Common Stock issuable to the Investors in the Offering (including upon exercise of the Pre-Funded Warrants
and giving effect to any anti-dilution and price adjustment provisions thereunder) is subject to a cap of 19.99% of the Company’s
outstanding Common Stock immediately prior to the execution of the Purchase Agreement, until such time as the Company obtains the approval
of its stockholders required under applicable Nasdaq Listing Rules.
In connection with the Purchase Agreement, the
Company also entered into a Registration Rights Agreement with the Investors (the “Registration Rights Agreement”), pursuant
to which the Company agreed to provide certain registration rights with respect to the resale of the Shares and the Warrant Shares, and
agreed to file an initial registration statement within 30 days following the Closing to register the resale of such securities. In addition,
in connection with the Offering, the Company entered into a Placement Agent Agreement, dated May 8, 2026 (the “Placement Agent Agreement”),
with E.F. Hutton & Co. (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as the Company’s
exclusive placement agent in connection with the Offering, subject to the terms and conditions set forth therein.
The foregoing descriptions of the Purchase Agreement,
the Registration Rights Agreement, the Placement Agent Agreement and the Pre-Funded Warrants do not purport to be complete and are qualified
in their entirety by reference to the full text of the forms of such agreements, which are filed as Exhibits 10.1, 10.2, 10.3 and 4.1
to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to
Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously disclosed on a Current Report on Form 8-K filed with the Securities and Exchange Commission on November 21, 2025, on November
19, 2025, the Company received a written notice from the Listing Qualifications Department (the “Staff”) of The Nasdaq Stock
Market LLC (“Nasdaq”) notifying the Company that the closing bid price of the Company’s common stock had been below
the minimum $1.00 per share required for continued listing on The Nasdaq Capital Market under Nasdaq Listing Rule 5550(a)(2) (the “Minimum
Bid Price Requirement”) for the prior 30 consecutive business days.
On May 12, 2026, the Company received a letter from Nasdaq (the “Compliance Letter”) notifying the Company that the Staff
has determined that for the last 10 consecutive business days, from April 28, 2026 to May 11, 2026, the closing bid price of the Company’s
common stock has been at $1.00 per share or greater. Accordingly, the Company has regained compliance with Listing Rule 5550(a)(2), and
the matter is now closed.
Item 3.02 Unregistered Sales of Equity Securities.
The issuance and sale of the Shares and Pre-Funded
Warrants at the Closing were made, and the issuance of the Warrant Shares upon exercise of the Pre-Funded Warrants will be made, in reliance
upon the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”),
and Rule 506(b) of Regulation D promulgated thereunder, as transactions by an issuer not involving a public offering. The Investors represented
that they are “accredited investors” as defined in Rule 501(a) under the Securities Act.
The information in Item 1.01 is incorporated by
reference herein.
1
Item 7.01 Regulation FD Disclosure.
On May 8, 2026, the Company issued a press release
announcing the pricing of the Offering. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information in this Item 7.01, including Exhibit
99.1, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934,
as amended, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under
the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 8.01. Other Events.
On December 31, 2025, the Company convened its
2025 Annual Meeting of Stockholders (the “Annual Meeting”). Because a quorum was not present, the Company adjourned the Annual
Meeting to permit additional time for stockholders to vote on the proposals set forth in the Company’s definitive proxy statement
filed with the Securities and Exchange Commission on November 21, 2025 (the “Proxy Statement”).
The Annual Meeting was reconvened on January 23,
2026, February 13, 2026, March 13, 2026, April 10, 2026 and May 8, 2026. At each reconvened meeting, a quorum was not present and the
Annual Meeting was adjourned.
The Company intends to reconvene the Annual Meeting
on May 29, 2026 at 9:00 a.m. Eastern Time. The record date for determination of stockholders entitled to vote at the Annual Meeting remains
November 3, 2025. No changes have been made to the proposals to be voted on at the Annual Meeting, which are described in the Proxy Statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
4.1
Form of Pre-Funded Warrant
10.1
Form of Securities Purchase Agreement, dated May 8, 2026, by and between the Company and the Investors
10.2
Form of Registration Rights Agreement, dated May 8, 2026, by and between the Company and the Investors
10.3
Form of Placement Agent Agreement, dated May 8, 2026, by and between the Company and E.F. Hutton & Co.
99.1
Press Release dated May 8, 2026
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
2
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 13, 2026
iSPECIMEN INC.
By:
/s/ Katharyn Field
Name:
Katharyn Field
Title:
Chief Executive Officer
3
EX-4.1 — FORM OF PRE-FUNDED WARRANT
EX-4.1
Filename: ea029014301ex4-1.htm · Sequence: 2
Exhibit 4.1
iSPECIMEN INC.
NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PRE-FUNDED WARRANT
Warrant Shares: [ ]
Initial Exercise Date: [_______], 2026
Issue Date: [_______], 2026
THIS PRE-FUNDED 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 hereof
(the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination Date”)
but not thereafter, to subscribe for and purchase from iSpecimen Inc., a Delaware corporation (the “Company”), up to
[_____] shares of Common Stock (as subject to adjustment hereunder, the “Warrant Shares”). 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.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated [ ], 2026, among the Company and the purchasers signatory thereto.
Section 2. Exercise.
a) Exercise
of Warrant. Subject to Section 2(e) herein, 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 facsimile copy or 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) one (1) Trading Day 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. 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 ,
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) delivered pursuant
to Section 2(a) hereof on a day that is not a Trading Day or (2) 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) the highest Bid Price of the shares of Common Stock on the principal Trading Market as reported by Bloomberg
L.P. (“Bloomberg”) within two (2) hours of the time of the Holder’s delivery of the Notice of Exercise pursuant to Section
2(a) hereof if such Notice of Exercise is delivered during “regular trading hours,” or with two (2) hours after the close
of “regular trading hours,” on a Trading Day 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 delivered pursuant to Section 2(a) hereof after two (2) hours
following 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 characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the shares of Common Stock are then
listed or quoted on a Trading Market, the daily volume weighted average price of the shares of Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the shares of 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 shares of Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the shares of Common Stock are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the shares of Common Stock
are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per shares of Common Stock so reported, or (d) in all other cases, the fair market value of a share of shares of Common
Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
2
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the shares of Common Stock are then
listed or quoted on a Trading Market, the bid price of the shares of Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the shares of Common Stock are 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 shares of Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the
shares of Common Stock are not then listed or quoted for trading on OTCQB or OTCQX and if prices for shares of 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 shares of 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 Purchasers of a majority in interest of the Securities then outstanding and
reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant
to Rule 144 (assuming cashless exercise of the Warrants), 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 earliest of (i) two (2) Trading
Days after the delivery to the Company of the Notice of Exercise, and (ii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of
(i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. 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 shares of Common Stock on the date of the applicable Notice of Exercise), $10
per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day
after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to
maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on
the Company’s primary Trading Market with respect to the shares of 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.
3
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 (other than any such failure that is solely due to
any action or inaction by the Holder with respect to such exercise), 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 shares of 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.
4
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 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% (or, upon election by a Holder prior to the
issuance of any Warrants, 9.99%) of the number of shares of 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 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.
5
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 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 Common Stock any shares
or other equity interests 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
Equity Sales. If, at any time while this Warrant is outstanding, the Company or any Subsidiary issues, sells, grants or is deemed
to have issued, sold or granted any Common Stock or Common Stock Equivalents (other than an Exempt Issuance, as defined in the Purchase
Agreement) for a consideration per share (the “Dilutive Issuance Price”) less than the Per Share Purchase Price in effect
immediately prior to such issuance, sale or grant (a “Dilutive Issuance”), then, immediately upon such Dilutive Issuance and
without any further action of any Person, (i) the Per Share Purchase Price shall be reduced to equal the Dilutive Issuance Price (such
reduced price, the “Adjusted Per Share Purchase Price”), and (ii) the number of Warrant Shares issuable upon exercise of this
Warrant shall, automatically and without any action by the Holder or the Company, be increased to equal: (A) the number of Warrant Shares
set forth on the face of this Warrant on the Issue Date, multiplied by a fraction, the numerator of which is the Per Share Purchase Price
in effect immediately prior to the Dilutive Issuance and the denominator of which is the Adjusted Per Share Purchase Price, less (B) the
number of Warrant Shares previously issued upon any exercise of this Warrant prior to such Dilutive Issuance. For purposes of this Section
3(b), “Per Share Purchase Price” has the meaning ascribed to such term in the Purchase Agreement (as adjusted from time to
time as a result of any prior Dilutive Issuance hereunder or under Section 4.14 of the Purchase Agreement), and “Common Stock Equivalents,”
“Exempt Issuance,” and “Variable Rate Transaction” have the meanings ascribed in the Purchase Agreement; provided,
that an “Exempt Issuance” shall not include any Variable Rate Transaction. In computing the Dilutive Issuance Price, the Company
shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest effective per share price at which such Common Stock
or Common Stock Equivalents are issued, issuable or deemed issued, regardless of whether and when such securities are actually issued,
including by reason of any reset, adjustment, floating conversion, exercise or exchange feature. The Company shall give the Holder written
notice of any Dilutive Issuance not later than the next Business Day following such Dilutive Issuance, which notice shall set forth the
Dilutive Issuance Price, the Adjusted Per Share Purchase Price and the recalculated number of Warrant Shares issuable upon exercise of
this Warrant. The provisions of this Section 3(b) shall apply successively to each Dilutive Issuance during the term of this Warrant,
and shall be in addition to, and not in lieu of, the rights of the Holder under any other Section of this Warrant or under Section 4.14
of the Purchase Agreement. Notwithstanding anything in this Section 3(b) to the contrary, until shareholder approval to the extent required
under the rules of the Principal Market has been obtained, no adjustment to the number of Warrant Shares or the Per Share Purchase Price
pursuant to this Section 3(b) shall be effected to the extent such adjustment would, when aggregated with all other shares of Common Stock
issued or issuable to the Purchasers pursuant to the Transaction Documents, result in the issuance of a number of shares of Common Stock
in excess of 19.99% of the shares of Common Stock issued and outstanding immediately prior to the execution of the Purchase Agreement
(subject to equitable adjustment for any stock split, stock dividend, recapitalization or similar event affecting the Common Stock). The
Company shall comply with its obligations under Section 4.15 of the Purchase Agreement to seek such shareholder approval, and if such
shareholder approval has not been obtained on or prior to the date that is one hundred twenty (180) days following the Closing Date (as
defined in the Purchase Agreement), the adjustment provisions of this Section 3(b) shall terminate and be of no further force or effect.
6
c) 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 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 Common Stock are to be determined
for the grant, issue or sale of such Purchase Rights (provided, however, 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).
d) 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 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 Common Stock are to be determined for the participation in such Distribution (provided, however,
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).
7
e) 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 (excluding mergers effected solely to change
the Company’s name), (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 more than 50% of the outstanding shares of Common Stock or more than 50% of the
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the shares of Common Stock or any compulsory share exchange pursuant to which
the shares of Common Stock are 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 or more than 50% of the voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), and to the extent is within the Company’s control to cause the successor or acquiring corporation
to deliver to the Holder the foregoing, 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 that is within the Company’s control and 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(e) 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). 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.
8
f) 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.
g) 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 facsimile or 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 shares
of Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the shares of Common Stock,
(C) the Company shall authorize the granting to all holders of Common Stock rights or warrants to subscribe for or purchase any shares
of Common Stock (or other equity interests) 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 shares of Common Stock, any consolidation or merger to which the Company (or any
of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby
the shares of Common Stock are 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 facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the
Company, at least 10 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 shares of 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 shares of Common
Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect
therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the
extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any
of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 6-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.
9
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any 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 original Issue Date and shall be identical with this Warrant
except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No Rights
as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or
other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth
in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section
2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv), in no event shall the Company be required to net cash
settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
10
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 shares of 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 shares of 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) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
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.
11
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 or the Purchase Agreement, 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 notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in
accordance with the notice provisions of the Purchase Agreement.
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 shares of 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 written consent of the holders holding the majority of the then outstanding Warrants, 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.
********************
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
12
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.
iSPECIMEN INC.
By:
Name:
Katharyn Field
Title:
Chief Executive Officer
13
NOTICE OF EXERCISE
To: _______________________
(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: ________________________________________________________________________________________
14
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to
Name:
(Please Print)
Address:
(Please Print)
Phone Number:
Email Address:
Dated: _______________ __, ______
Holder’s Signature:
Holder’s Address:
15
EX-10.1 — FORM OF SECURITIES PURCHASE AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND THE INVESTORS
EX-10.1
Filename: ea029014301ex10-1.htm · Sequence: 3
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is entered into and made effective as of [_______], 2026, by and among iSpecimen Inc., a Delaware
corporation (the “Company”), each purchaser identified on the signature pages hereto (each, including its successors
and assigns, a “Purchaser” and collectively the “Purchasers”).
RECITALS
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements of Section 5 of the Securities
Act contained in Section 4(a)(2) thereof and/or Rule 506(b) of Regulation D thereunder, 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;
WHEREAS, the Company desires
to sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, shares of Common Stock
(the “Shares”), and, in lieu of Shares that would otherwise result in such Purchaser’s beneficial ownership exceeding
[4.99][9.99]% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of such shares, pre-funded
warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and the shares of Common Stock issuable upon
exercise thereof, the “Warrant Shares”);
WHEREAS, the Company desires
to sell up to [_______] Shares at a purchase price of $[____] per Share (the “Per Share Purchase Price”), and Pre-Funded
Warrants in lieu of Shares at a purchase price of $[____] per Pre-Funded Warrant (equal to the Per Share Purchase Price less $0.001) (the
“Per Pre-Funded Warrant Purchase Price”), to the Purchasers upon the terms and subject to the conditions contained
in this Agreement; and
WHEREAS, each Purchaser desires
to purchase, and the Company desires to sell, upon the terms and conditions set forth herein, such number of Shares (or Pre-Funded Warrants
in lieu thereof) as specified below such Purchaser’s name on the signature page of this Agreement.
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 1.
DEFINITIONS
1.1. Definitions. For the purposes of this Agreement,
the following words and phrases 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.
“Agreement”
shall have the meaning ascribed to such term in the preamble.
“Applicable Amount”
shall have the meaning ascribed to such term in Section 4.2(b).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Board of Directors”
means the board of directors of the Corporation.
“Charter”
means the Certificate of Incorporation of the Corporation.
“Closing”
shall have the meaning ascribed to such term in Section 2.2.
“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 to be issued and sold, in each case, have been satisfied or waived, but in no event later than the second Trading
Day following the date hereof.
“Closing Price”
means, for any security on any Trading Day, (i) the official closing price for such security on the Principal Market, as reported by Bloomberg
or, if not available, as reported by The Nasdaq Stock Market LLC (the “Nasdaq”) (or any successor), or (ii) if no such
trade price is available for that Trading Day, the fair market value of such security as determined in good faith by the Board of Directors
of the Company.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or its Subsidiaries which would entitle the holder thereof to acquire Common Stock at any time, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
shall have the meaning ascribed to such term in the preamble. “Consent” shall have the meaning ascribed to such term
in Section 4.6.
“Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1(ll).
“DTC” shall
have the meaning ascribed to such term in Section 3.1(w).
“Effective Date”
shall have the meaning ascribed to such term in Section 4.1(c).
“Environmental Laws”
shall have the meaning ascribed to such term in Section 3.1(m).
“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.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Federal Reserve”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Floor Price”
[Intentionally Omitted].
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Hazardous Materials”
shall have the meaning ascribed to such term in Section 3.1(m).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
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“Initial Closing”
shall have the meaning ascribed to such term in Section 2.2.
“Intellectual Property”
means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether
or not reduced to practice), all improvements thereto, and all U.S. and foreign patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks,
service marks, brand names, certification marks, trade dress, logos, trade names, domain names, assumed names and corporate names, together
with all colorable imitations thereof, and including all goodwill associated therewith, and all applications, registrations, and renewals
in connection therewith, (c) all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all trade
secrets under applicable state laws and the common law and know-how (including formulas, techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (e) all computer
software (including source code, object code, diagrams, data and related documentation), and (f) all copies and tangible embodiments of
the foregoing (in whatever form or medium).
“Issuer Covered Person”
and “Issuer Covered Persons” shall have the meanings ascribed to such terms in Section 3.1(ll).
“Laws”
means any U.S. federal, state, local, foreign or other laws, rules regulations, guidelines, orders, injunctions, building and other codes,
ordinances, permits, licenses, authorizations, judgements, decrees of federal, state, local, foreign or other authorities, and all orders,
writs, decrees and consents of any governmental or political subdivision or agency thereof, or any court of similar tribunal established
by any such governmental or political subdivision or agency thereof.
“Legend Removal Date”
shall have the meaning ascribed to such term in Section 4.1(c).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“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).
“Money Laundering
Laws” shall have the meaning ascribed to such term in Section 3.1(qq).
“National Securities
Exchange” means any United States national securities exchange on which the securities of the Company are listed for trading,
including, but not limited to, The Nasdaq Stock Market LLC, the NYSE American LLC, or the New York Stock Exchange LLC.
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(nn).
“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.
“Principal Market”
means primary market on which the Company’s Common Stock is then listed or quoted for trading, including, without limitation, The
New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, OTCPink,
OTCQB, or OTCQX and any successor markets thereto.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether pending or to the Company’s knowledge, threatened in writing against or affecting the Company, any
Subsidiary or any of their respective properties before any court, arbitrator, governmental or administrative agency or regulatory authority.
“Public Information
Failure” shall have the meaning ascribed to such term in Section 4.2(b).
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“Purchaser”
and “Purchasers” shall have the meanings ascribed thereto in the preamble.
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.8.
“Purchase Price”
shall have the meaning ascribed to such term in the recitals.
“Registration Rights Agreement”
means the registration rights agreement, in the form of Exhibit B.
“Registration Statement”
shall have the meaning ascribed to such term in Section 1 of the Registration Rights Agreement.
“Regulation FD”
means Regulation FD promulgated by the SEC pursuant to the Exchange Act, as such Regulation may be amended or interpreted from time to
time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Regulation.
“Reserved Amount”
shall have the meaning ascribed to such term in Section 4.9.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Reverse Split Approvals”
[Intentionally Omitted].
“Rule 144”
means Rule 144 promulgated by the SEC 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 SEC (or similar United States law) having substantially the same purpose and effect
as such Rule.
“SEC” means
the United States Securities and Exchange Commission.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
shall have the meaning ascribed to such term in Section 2.1(b).
“Securities Act” means the Securities
Act of 1933, and the rules and regulations promulgated thereunder.
“Pre-Funded Warrants”
shall have the meaning ascribed to such term in Section 2.1(a).
“Shares”
shall have the meaning ascribed to such term in the recitals.
“Common Stock”
shall have the meaning ascribed to such term in the recitals.
“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
the location and/or reservation of borrowable shares of Common Stock).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for the Shares (or Pre-Funded Warrants in lieu thereof) purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading.
“Subsidiary”
means with respect to any entity at any date, any direct or indirect corporation, limited or general partnership, limited liability company,
trust, estate, association, joint venture or other business entity of which (a) more than 50% of (i) the outstanding capital stock having
(in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such entity,
(ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited
liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such
trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through
one or more intermediaries, by such entity, or (b) is under the actual control of the Company.
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“Trading Day”
means a day on which the Principal Market is open for trading.
“Transaction Documents”
means this Agreement, the Pre-Funded Warrants, the Placement Agency Agreement, the Registration Rights Agreement, all schedules and exhibits
thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Broadridge Corporate Issuer Solutions LLC, 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 Principal Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Principal Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)) (or a similar organization or agency succeeding to its functions of
reporting prices), (b) if no volume weighted average price of the Common Stock can be ascertained from the Principal Market, the average
closing price of the Common Stock during the ten (10) Trading Days preceding such date, or (c) in all other cases, the fair market value
of a share of Common Stock as determined by the Board of Directors.
ARTICLE 2.
PURCHASE AND SALE
2.1. Sale and Issuance of
Shares.
(a) [Intentionally
Omitted].
(b) Subject to the
terms and conditions of this Agreement, each Purchaser agrees to purchase at the applicable Closing (as defined below), and the Company
agrees to sell and issue to each Purchaser at the applicable Closing, such number of Shares (or Pre-Funded Warrants in lieu thereof) as
is set forth on the signature page hereto. In lieu of Shares that would otherwise result in any Purchaser’s beneficial ownership
exceeding [4.99][9.99]% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of Shares
hereunder (the “Beneficial Ownership Limitation”), such Purchaser may elect to receive Pre-Funded Warrants. The Shares,
the Pre-Funded Warrants, and the Warrant Shares issued or issuable to the Purchasers pursuant to this Agreement shall be referred to in
this Agreement as the “Securities.”
2.2. Closing.
The initial purchase and sale of the Securities shall take place remotely via the exchange of documents and signatures, 12:00 p.m., on
[_______], 2026, or at such other time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time
and place are designated as the “Initial Closing”). In the event there is more than one closing, the term “Closing”
shall apply to each such closing unless otherwise specified.
2.3. Deliveries.
(a) On or prior to the applicable Closing,
the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) This Agreement,
duly executed by the Company;
(ii) The Pre-Funded
Warrants, if any, duly executed by the Company, in the form attached hereto as Exhibit A;
(iii) The Company’s
wire transfer instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(iv) A legal opinion
from counsel to the Company, dated as of the Closing Date, addressed to the Purchasers and in form and substance reasonably satisfactory
to the Purchasers, covering such matters as are customary in transactions of this nature, including the due authorization, execution and
delivery of the Transaction Documents and the valid issuance of the Securities;
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(v) An Officer’s
Certificate of an executive officer of the Company, dated as of the Closing Date, certifying that (A) the representations and warranties
of the Company in the Transaction Documents are true and correct as of such date (or as of an earlier date if so specified), and (B) the
Company has performed all obligations required to be performed as of the Closing Date;
(vi) A Certificate
of the Secretary (or Assistant Secretary) of the Company, dated as of the Closing Date, certifying and attaching (A) a true, complete
and correct copy of the Company’s Certificate of Incorporation, as amended and in effect on the Closing Date, (B) a true, complete
and correct copy of the Company’s Bylaws, as amended and in effect on the Closing Date, (C) the resolutions of the Board of Directors
authorizing the execution, delivery, and performance of the Transaction Documents and the issuance of the Securities, and (D) the incumbency
and signatures of the officers of the Company executing the Transaction Documents;
(vii) A Certificate
of the Chief Financial Officer of the Company, dated as of the Closing Date, certifying as to the Company’s cash and cash equivalents,
indebtedness, and any material off-balance sheet or undisclosed liabilities as of the Closing Date;
(viii) A Certificate
of Good Standing of the Company issued by the Secretary of State of the State of Delaware, dated as of a recent date prior to the Closing
Date;
(ix) The Shares, issued
in book-entry form, duly credited to each Purchaser’s account at the Company’s transfer agent, free and clear of all liens
and encumbrances, other than applicable securities law restrictions;
(x) The Registration
Rights Agreement, duly executed by the Company;
(xi) A reservation
letter from the Company and its transfer agent, confirming that a sufficient number of shares of Common Stock have been reserved for issuance
upon exercise of the Pre-Funded Warrants;
(xii) [Intentionally
Omitted]; and
(xiii) A negative
assurances letter (10b-5 letter), dated as of the Closing Date, from counsel to the Company, addressed to the Purchasers and the Placement
Agent, in form and substance reasonably satisfactory to the Purchasers;
(iv) Lock-up Agreements
each with a duration of 180 days entered into by the Company’s (a) officers; (b) directors; and (c) owners of five percent (5%)
or more of the Company’s issued and outstanding shares of Common Stock substantially in the form attached hereto as Exhibit
D;
(b) On or prior to the applicable Closing,
each Purchaser shall deliver or cause to be delivered the following:
(i) To the Company,
this Agreement, duly executed by such Purchaser;
(ii) To the Company,
the Registration Rights Agreement, duly executed by such Purchaser;
(iii) To the Company,
such Purchaser’s Subscription Amount, by wire transfer of immediately available funds in accordance with the wire instructions provided
by the Company, to be held and disbursed in accordance with this Agreement; and
(iv) To the Company
and/or the Placement Agent, such other information, certificates, or documents reasonably requested to consummate the transactions contemplated
by this Agreement.
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2.4. Closing Conditions.
(a) The obligations
of the Company hereunder in connection with each applicable 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) on the applicable Closing Date of the representations and warranties of each Purchaser contained herein (unless as of a specific
date therein in which case they shall be accurate as of such date);
(ii) all obligations,
covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed in all material
respects; and
(iii) the delivery
by each Purchaser of the items set forth in Section 2.3(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 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 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 2.3(a) of this Agreement;
(iv) there shall have
been no Material Adverse Effect with respect to the Company since the date hereof;
(v) from the date
hereof to the Closing Date trading in the Common Stock shall not have been suspended by the SEC or the Company’s Principal 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 Principal
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 3.
REPRESENTATIONS AND WARRANTIES
3.1. Representations
and Warranties of the Company. The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure
Schedule to this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the following
representations are true and complete as of the date of the Initial Closing, except as otherwise indicated. The Disclosure Schedule shall
be arranged in sections corresponding to the numbered and lettered sections contained in this Section 3.1, and the disclosures
in any section of the Disclosure Schedule shall qualify other sections in this Section 3.1 only to the extent it is readily
apparent from a reading of the disclosure that such disclosure is applicable to such other sections.
(a) Subsidiaries.
All of the direct and indirect Subsidiaries of the Company are set forth on Schedule 3.1(a). Except as 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.
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(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 Charter, 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 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 shareholders in connection herewith or therewith other than in
connection with the Required Approvals. Subject to obtaining 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.
Except as set forth in Schedule 3.1(d), 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) subject to the Required Approvals, conflict with or violate any provision of the Company’s
or any Subsidiary’s Charter, bylaws or other organizational or charter documents, or (ii) 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, 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.
8
(e) Filings,
Consents and Approvals. Except as set forth on Schedule 3.1(e), 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) application(s) to each applicable
Principal Market for the listing of the Shares and the Warrant Shares for trading thereon in the time and manner required thereby, and
(iii) such filings as are required to be made under applicable state or federal securities laws (collectively, the “Required
Approvals”).
(f) Issuance
of the Securities. 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 upon exercise of the Pre-Funded Warrants in accordance with the terms thereof will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The Company shall reserve from its duly authorized capital stock a
number of shares of Common Stock issuable pursuant to the exercise of the Pre-Funded Warrants equal to the amount set forth in Section
4.9.
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than as set forth
on Schedule 3.1(g) other than pursuant to the exercise of employee stock awards under the Company’s equity incentive
plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans, the issuance
of shares of Common Stock or Common Stock Equivalents pursuant to agreements outstanding as of the date of the most recently filed periodic
report under the Exchange Act 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) and will not result in a right of any holder
of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding
securities or instruments of the Company 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. Except for required approvals,
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 shareholders 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 shareholders.
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(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, being collectively referred to herein as the
“SEC Reports”). 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 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 SEC 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 year-end audit adjustments.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Other than as set forth on Schedule 3.1(i) since the date
of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report
filed prior to the date hereof, (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 SEC, (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 shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company
has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company equity incentive plans.
The Company does not have pending before the SEC 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 one Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as disclosed in the SEC Reports, there is no action, suit, notice of violation, proceeding or investigation, inquiry
or other similar proceeding of any federal or state governmental authority 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”) which (i) adversely
affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the issuance of the Securities or
(ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. The Company
has no reason to believe that an Action will be filed against it in the future. Except as set forth in the SEC Reports, 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 SEC involving the Company or any current or former director
or officer of the Company. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Securities Act, and the Company has no reason to believe it will
do so in the future.
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(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 effort is underway to unionize or organize the employees of the Company
or any Subsidiary. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of
each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing
matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state, local and foreign laws and regulations
relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be
in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no workmen’s
compensation liability matter, employment-related charge, complaint, grievance, investigation, inquiry or obligation of any kind pending,
or to the Company’s knowledge, threatened, relating to an alleged violation or breach by the Company or its Subsidiaries of any
law, regulation or contract that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Company has no reason to believe that any individual may commence an Action or file a claim with any governmental authority against the
Company alleging sexual harassment or any type of discrimination or violation of any Laws.
(l) Compliance.
Except as set forth on Schedule 3.1(l), 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 and regulations relating
to taxes, healthcare laws, anti-kickback laws, securities, environmental protection, occupational health and safety, product quality and
safety, transportation, 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 except in each case of 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.
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(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 do not materially affect the value
of such property, 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, except where the failure to so comply would not be reasonably expected to have, individually or
in the aggregate, a Material Adverse Effect.
(p) Intellectual
Property.
(i) Except as set
forth in Schedule 3.1(p), the Company owns or possesses or has the right to use pursuant to a valid and enforceable written
license, sublicense, agreement, or permission all Intellectual Property necessary for the operation of the business of the Company as
presently conducted, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(ii) The Company has
no knowledge that the Intellectual Property interferes with, infringe upon, misappropriate, or otherwise come into conflict with, any
Intellectual Property rights of third parties, and the Company has no knowledge that facts exist which indicate a likelihood of the foregoing.
The Company has not received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation,
or conflict (including any claim that the Company must license or refrain from using any Intellectual Property rights of any third party).
To the knowledge of the Company, all rights to its Intellectual Property are enforceable and no third party has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with, any Intellectual Property rights of the Company, except in each case as could
not have or reasonably be expected to result in a Material Adverse Effect. 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.
(iii) None of, and
neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights have
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, except where such expiration, termination or abandonment would not reasonably be expected to, individually or in the aggregate,
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. 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 disclosed in Schedule 3.1(r), none of the officers, directors or Affiliates 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, Affiliate 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 award agreements under any equity incentive plan of the Company.
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(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as disclosed in Schedule 3.1(s), the Company and the Subsidiaries are in compliance
with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and as of the applicable Closing. The
Company and the Subsidiaries maintain a system of internal accounting controls as set forth in the SEC Reports. 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. Other than as set forth on Schedule 3.1(t), 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
3.1(t) 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. Other than as required pursuant to this Agreement and as set forth on Schedule 3.1(v), 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.
The Company shall not file any other resale registration statement prior to filing the registration statement required hereunder.
(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 SEC is contemplating terminating such registration.
The Company has not, in the 12 months preceding the date hereof, received notice from any Principal 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
Principal 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 (“DTC”) or another established clearing corporation and the Company is current in payment of the fees
to the DTC (or such other established clearing corporation) in connection with such electronic transfer. The Company is not subject to
any “chill” issued by the DTC.
(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 Charter (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, the Shares, the Pre-Funded Warrants and the Warrant Shares.
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(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 SEC Reports.
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 light of the circumstances under which they were made, not misleading. The press releases disseminated by
the Company during the 12 months preceding the date of this Agreement do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that 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 Principal Market
on which any of the securities of the Company are listed or designated.
(aa) Indebtedness. 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. The SEC Reports set 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 $100,000 (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 $200,000 due under leases required to be capitalized
in accordance with GAAP. Except as set forth in the SEC Reports, 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.
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(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 any provision of FCPA.
(dd) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm
is a registered public accounting firm as required by the Exchange Act and the rules of the Public Company Accounting Oversight Board
(“PCAOB”), and is in good standing with the PCAOB. Such firm has expressed its opinion with respect to the financial statements
included in the Company’s most recently filed Annual Report on Form 10-K and, to the knowledge of the Company, is expected to express
its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending [_______],
2026. The Company has not had any disagreements (as that term is defined in Item 304 of Regulation S-K) with its independent registered
public accounting firm during the periods covered by the financial statements included in the SEC Reports or any subsequent interim period.
To the Company’s knowledge, such firm has not resigned or been dismissed as the Company’s independent auditors as a result
of or in connection with any disagreement relating to accounting principles, financial statement disclosures, or auditing scope or procedures.
(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) Acknowledgement
Regarding Purchaser’s Trading Activity. Notwithstanding anything in this Agreement or elsewhere to the contrary (except
for Sections 3.2(f) and 4.12 hereof), it is understood and acknowledged by the Company that: (i) no
Purchaser 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, and (z) such hedging activities (if
any) could reduce the value of the existing shareholders ‘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.
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(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 the Common Stock to facilitate the sale 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 Agents in connection with the placement of the Securities.
(hh) 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.
(ii) Cybersecurity.
Except as would not reasonably be expected to result in a Material Adverse Effect, (i) there has been no material security breach of or
relating to any of the Company’s or its Subsidiaries’ 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”), (ii) 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 material security
breach to its IT Systems and Data, (iii) the Company and its 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, (iv) the Company and its Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and
protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and
Data, and (v) the Company and its Subsidiaries have implemented commercially reasonable backup and disaster recovery technology.
(jj) Private
Placement. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated
hereby.
(kk) No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(ll) No
Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506(b) under the Securities
Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with
the Company in any capacity at the time of sale, nor any Person, including a placement agent, who will receive a commission or fees for
soliciting purchasers (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a
“Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has
exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied,
to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures
provided thereunder.
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(mm) Notice
of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, reasonably be expected to become
a Disqualification Event relating to any Issuer Covered Person, in each case of which it is aware.
(nn) 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”).
(oo) 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.
(pp) 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, 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.
(qq) 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 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.
(rr) Shell Company
Status. The Company is not, and has not been for a period of at least one year from the date hereof, an issuer identified in Rule 144(i)(1)
of the Securities Act. The Company has filed current “Form 10 information” (as defined in Rule 144(i)(3)) with the SEC reflecting
its status as an entity that was no longer an issuer described in Rule 144(i)(1)(i) more than one year ago from the date hereof. The Company
shall provide a legal opinion of counsel to the Company in a form reasonably acceptable to the Purchaser with respect to this representation.
3.2. Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants to the Company
as follows which representations and warranties shall be true and correct as of the date hereof and as of the Closing 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 this Agreement and otherwise to carry
out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser of the transactions
contemplated by this Agreement 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.
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(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 in compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its business. Such Purchaser understands that the Securities
are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and
is acquiring such Securities as principal for its own account and not with a view to or for distributing or reselling such Securities
or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing
any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities
Act or any applicable state securities law (this representation and warranty not limiting such Purchaser’s right to sell such Securities
in compliance with applicable federal and state securities laws).
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited investor”
within the meaning of Rule 501 under Regulation D promulgated under the Securities Act or a “qualified institutional buyer”
as defined in Rule 144A(a) promulgated under the Securities Act. No Purchaser is subject to any Disqualification Event, except for a Disqualification
Event covered by Rule 506(d)(2) or (d)(3).
(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, subject to Regulation FD, (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 Company, the Placement Agent, nor their Affiliates or anyone else has provided such Purchaser with any information or
advice with respect to the Securities nor is such information or advice necessary or desired. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agents nor any of their Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions
contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the
identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions
in the future.
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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 transaction contemplated hereby.
ARTICLE 4.
OTHER AGREEMENTS OF THE PARTIES
4.1. Removal of Legends.
(a) The Shares,
the Pre-Funded Warrants and the Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection
with any transfer of the Shares or the Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company
or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require
the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at
the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred Shares, Pre-Funded Warrants or Warrant Shares under the Securities Act.
(b) Each Purchaser
agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares, the Pre-Funded Warrants
or the Warrant Shares in substantially the following form:
NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges and
agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Shares, the Pre-Funded Warrants or the Warrant Shares to a financial institution that is an
“accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this
Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares, Pre-Funded Warrants
or the Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and
no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice
shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of the Shares, Pre-Funded Warrants, or the Warrant Shares may reasonably request in connection with a pledge
or transfer of the Shares, Pre-Funded Warrants or the Warrant Shares.
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(c) Certificates
evidencing the Shares, the Pre-Funded Warrants and the Warrant Shares (or the Transfer Agent’s records if held in book entry form)
shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement
covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following
any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule
144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such
Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements
of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC).
The Company shall, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date
if required by the Transfer Agent to effect the removal of the legend hereunder. If any Pre-Funded Warrants are exercised at a time when
there is an effective registration statement to cover the resale of the Warrant Shares, or if such Warrant Shares may be sold under Rule
144 and the Company is then in compliance with the current public information required under Rule 144, or if the Warrant Shares may be
sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule
144 as to such Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable
requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the
staff of the SEC) then such Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective
date of any registration statement or at such time as such legend is no longer required under this Section 4.1(c), it will, no later than
two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares
or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”),
deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive
and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions
on transfer set forth in this Section 4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall
be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository
Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent.
(d) In addition
to such Purchaser’s other available remedies, subject to Section 5.18(a) but not Section 5.18(b), (i)
the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the Shares or Warrant
Shares subject to such request, $10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading
Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s
right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the
Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any
portion of the number of Shares or Warrant Shares, or a sale of a number of Shares or Warrant Shares equal to all or any portion of the
number of Shares or Warrant Shares that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the
Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including
brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions
and other out-of-pocket expenses, if any) over the product of (A) such number of Shares or Warrant Shares that the Company was required
to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading
Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Warrant Shares and ending
on the date of such delivery and payment under this Section 4.1(d).
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(e) In the event
a Purchaser shall request delivery of unlegended shares as described in this Section 4.1 and the Company is required
to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer
including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable
government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that
such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction
Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining
delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the
benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the applicable Shares
or Warrant Shares, or (ii) the highest VWAP during the five (5) Trading Days before the issue date of the injunction multiplied by the
number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation
of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s
favor.
(f) The Company
shall (A) pay the reasonable legal fees of the Purchaser’s choice (provided such counsel is reasonably acceptable to the Company)
(in an amount not to exceed $500 per legal opinion, and not more often than once per week per Purchaser) in connection with the issuance
of Shares or the exercise of the Pre-Funded Warrants, and (B) cause its attorneys to promptly provide any opinion or reliance opinion
to the Transfer Agent.
4.2. Furnishing of
Information; Public Information.
(a) Until the earliest
of the time that no Purchaser owns Securities, the Company covenants to use its reasonable best efforts to timely file (or obtain extensions
in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
(b) At any time
during the period commencing from the six (6) month anniversary of the Closing Date and ending at such time that all of the Securities
may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation
pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c)
or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy
any condition set forth in Rule 144(i)(2) (a “Public Information Failure”), then, in addition to such Purchaser’s
other available remedies, the Company shall pay to such Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason
of any such delay in or reduction of its ability to sell the applicable Securities, an amount in cash equal to one percent (1.0%) of the
Applicable Amount on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than
thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public
information is no longer required for the Purchaser to transfer the Securities pursuant to Rule 144.
For purposes of
this Section, the term “Applicable Amount” means the aggregate Purchase Price paid by such Purchaser for
Securities on the day of a Public Information Failure and on every thirtieth (30th) day thereafter until the earlier of the cure of such
Public Information Failure or such time that public information is no longer required under Rule 144 for transfer.
Public Information
Failure payments shall be paid on the earlier of (i) the last day of the calendar month during which such payments are incurred and (ii)
the third (3rd) Business Day after the event or failure giving rise to such payments is cured. In the event the Company fails to make
Public Information Failure payments in a timely manner, such payments shall bear interest at the rate of 1.5% per month (pro rated for
partial months) until paid in full.
Nothing herein shall
limit the Purchaser’s right to pursue actual damages for the Public Information Failure, and the Purchaser shall have the right
to pursue all remedies available to it at law or in equity, including, without limitation, a decree of specific performance and/or injunctive
relief.
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(a)(1) 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 Principal 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.
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4.4. Securities Laws
Disclosure; Publicity. The Company shall file a press release disclosing the material terms of this Agreement, prior to 9:00 AM (New
York Time) on the first Trading Day after the date hereof. The Company shall file a Current Report on Form 8-K prior to its due date in
accordance with the SEC’s rules. From and after the filing of the press release as provided in this Section 4.4, the
Company represents to each Purchaser that it shall have publicly disclosed all material, non-public information delivered to each Purchaser
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the
transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the
Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other
in issuing any 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 (other than the press release as provided in this Section
4.4, the Form 8-K approved by Purchaser, and the registration statement registering the resale of the Securities) without the prior
consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect
to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required
by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser
in any filing with the SEC or any regulatory agency or Principal Market, without the prior written consent of such Purchaser, except (a)
as required by the staff of the SEC in connection with the filing of final Transaction Documents with the SEC and (b) to the extent such
disclosure is required by law or Principal Market regulations, in which case the Company shall provide the Purchasers with prior notice
of such disclosure permitted under this clause (b).
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 any Purchaser.
4.6. Non-Public Information.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be
disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf
will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed
with the Company to keep such information confidential. To the extent that any notice provided pursuant to any Transaction Document or
any other communications made by the Company, or information provided, to any Purchaser constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, and such information was provided without such Purchaser’s prior written
consent, the Company shall simultaneously file material non-public information with the SEC 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. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s
consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of
its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, not to trade on the basis of, such
material, non-public information, provided that the Purchaser shall remain subject to applicable law. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. In addition to
any other remedies provided by this Agreement or other Transaction Documents, if the Company provides any material, non-public information
to the Purchasers without their prior written consent, and it fails to immediately (no later than the next Trading Day) file a Form 8-K
disclosing this material, non-public information, it shall, subject to Section 5.18, pay each Purchasers as partial liquidated
damages and not as a penalty a sum equal to $500 per day for each $100,000 of each Purchaser’s Subscription Amount beginning with
the day the information is disclosed to the Purchaser and ending and including the day the Form 8-K disclosing this information is filed;
provided that no such liquidated damages shall be owed to any Purchaser not then holding Securities.
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4.7. Use of Proceeds.
The Company shall use the net proceeds from the sale of Securities hereunder at the Initial Closing for marketing and working capital
purposes and shall not use such proceeds: (a) for the satisfaction of any debt, (b) for the redemption of any Common Stock or Common Stock
Equivalents, (c) for the settlement of any outstanding litigation, (d) in violation of FCPA or OFAC regulations, (e) to lend money, give
credit, or make advances to any officers, directors, employees or affiliates of the Company or (f) for the purchase of real estate.
4.8. Indemnification
of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the 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 (including local counsel, if retained) that any
such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser
Parties in any capacity, or any of them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such
Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a
breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or
gross negligence). 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 Purchaser Party, a material conflict on any material issue between
the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable
fees and expenses of no more than one such separate counsel for such Purchaser (in addition to local counsel, if retained). The Company
will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants
or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the
right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the
Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section
4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills
are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of
any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9. Reservation of
Common Stock. Immediately upon the Closing, the Company shall reserve from its duly authorized and unissued Common Stock a number
of shares equal to the number of shares of Common Stock then issuable upon exercise of all the Pre-Funded Warrants (the “Reserved
Amount”). The Company shall execute, and shall cause its transfer agent to execute and deliver, a reservation letter in the
form attached hereto as Exhibit C, and shall take all necessary action to ensure the Reserved Amount is maintained at all
times until the Pre-Funded Warrants have been exercised in full.
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4.10. Listing of Common
Stock. The Company hereby agrees to use its reasonable best efforts to maintain the listing or quotation of the Common Stock on the
Principal Market on which it is currently listed or quoted. The Company will then take all action necessary to continue the listing and
trading of its Common Stock on a Principal Market and will comply in all respects with the Company’s reporting, filing and other
obligations under the bylaws or rules of the Principal Market. The Company agrees to maintain the eligibility of the Common Stock for
electronic transfer through the DTC or another established clearing corporation, including, without limitation, by timely payment of fees
to the DTC or such other established clearing corporation in connection with such electronic transfer.
4.11. 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.
4.12. Certain Transactions
and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate
acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the
Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4.
Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such
Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from
effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the
Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding the
foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions
of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
4.15. Maintenance
of Property. The Company shall keep all of its property, which is necessary or useful to the conduct of its business, in good working
order and condition, ordinary wear and tear excepted.
4.16. Preservation
of Corporate Existence. The Company shall preserve and maintain its corporate existence, rights, privileges and franchises in the
jurisdiction of its incorporation, and qualify and remain qualified, as a foreign corporation in each jurisdiction in which such qualification
is necessary in view of its business or operations and where the failure to qualify or remain qualified might reasonably have a Material
Adverse Effect upon the financial condition, business or operations of the Company taken as a whole.
4.17. No Registration
of Securities. Except as disclosed on Schedule 4.18, while any Securities are outstanding, the Company will not file any
registration statements to register sales of Common Stock, including shares underlying any derivative securities, unless a registration
statement is then in effect for the resale by the Purchasers of the Shares and the Warrant Shares
4.18. Form D; Blue
Sky Filings. The Company shall take such actions as it reasonably determines are necessary to qualify the Securities for sale to the
Purchasers, or to secure an exemption from such qualification, under applicable state securities or “Blue Sky” laws of the
jurisdictions in which offers and sales of the Securities are made, and shall furnish evidence of such actions promptly upon request of
any Purchaser. The Company shall file, or cause to be filed, a Form D with the SEC with respect to the Securities as required under Regulation
D promulgated under the Securities Act, and shall provide a copy of such filing to the Purchasers upon request.
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ARTICLE 5.
MISCELLANEOUS
5.1. Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated
on or before September 1, 2025; 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 this Section 5.2 and 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, 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 date of transmission, if such notice or communication is delivered via facsimile
or email attachment at the facsimile number or 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 date of transmission, if such notice or communication is delivered
via facsimile or email attachment at the facsimile number or 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 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.
Except as provided in the last sentence of this Section 5.5, 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 the Purchaser’s which hold at
least 50.1% in interest in the Securities at the time of such amendment or waiver 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 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.
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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 Agents shall each be a third party beneficiary of the representations, warranties, and covenants of the
Company in this Agreement and the representations, warranties, and covenants of the Purchasers in this Agreement. 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;
Exclusive Jurisdiction; Attorneys’ Fees. 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 Delaware,
without regard to the principles of conflicts of law thereof. Each party agrees that all Actions concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Document (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 in New York County, New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in New York County, New York 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, any claim that it is not personally subject to the jurisdiction
of any such court, that such Action is improper or is an inconvenient venue for such Action. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such Action 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 to enforce
any provisions of the Transaction Documents, then, in addition to the obligations of the Company elsewhere in this Agreement, the prevailing
party in such Action 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.
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 facsimile transmission or 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 facsimile or “.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.
26
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.
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 without requiring the posting of any bond.
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 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. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18. Liquidated Damages.
The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing
obligation of the Company, and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding
the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall
have been canceled.
5.19. Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
5.20. 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.
27
5.21. WAIVER OF
JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVE FOREVER TRIAL BY JURY.
In addition, the parties hereto
agree that any action, proceeding or claim arising out of or relating in any way to this Agreement or the other Transaction Documents
shall be resolved through final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
5.22. Non-Circumvention.
The Company hereby covenants and agrees that the Company will not, by amendment of its Charter, including any Certificates of Designation,
or Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, 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 Agreement,
and will at all times in good faith carry out all of the provision of this Agreement and take all action as may be required to protect
the rights of all holders of the Securities. Without limiting the generality of the foregoing or any other provision of this Agreement
or the other Transaction Documents, the Company (a) shall not increase the par value of any shares of Common Stock receivable upon exercise
of the Pre-Funded Warrants above the exercise price of the Pre-Funded Warrants then in effect and (b) shall 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 the Pre-Funded Warrants. Notwithstanding anything herein to the contrary, if after six months from the Initial Closing, a
holder is not permitted to exercise the Pre-Funded Warrants, in full, for any reason, the Company shall use its best efforts to promptly
remedy such failure, including, without limitation, obtaining such consent or approvals as necessary to permit such exercise.
(Signature Pages Follow)
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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.
iSPECIMEN INC.
Address for Notice:
iSpecimen Inc.
8 Cabot Rd., Suite 1800
Woburn, MA 01801
Attn: Katharyn Field
Email:
By:
Name:
Katharyn Field
Title:
Chief Executive Officer
With a copy to (which shall not constitute notice):
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas, 31st floor
New York, NY 10036
Attn: Ross D. Carmel, Esq.
Email:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
29
[Company Signature Page to Securities Purchase
Agreement]
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.
Name of Purchaser: ____________________________
Signature of Authorized Signatory of Purchaser: ____________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ___________________________________________________
Email Address of Authorized Signatory: _______________________________________________
Facsimile Number of Authorized Signatory: ____________________________________________
Address for Notice to Purchaser: ________________________________________________
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount: $ _______________________
Shares: ________________________ Pre-Funded Warrants (in lieu of Shares):
________________________
Aggregate Purchase Price: $________________________
EIN Number: ___________________________
[Purchaser Signature Page to Securities Purchase
Agreement]
30
EXHIBIT A
Form of Pre-Funded Warrant
[see attached]
31
Exhibit B
Form of Registration Rights Agreement
[see attached]
32
Exhibit C
Form of Reservation Letter
[see attached]
33
Exhibit D
Form of Lockup Agreement
[see attached]
34
EX-10.2 — FORM OF REGISTRATION RIGHTS AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND THE INVESTORS
EX-10.2
Filename: ea029014301ex10-2.htm · Sequence: 4
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of May 7, 2026 between iSpecimen Inc., a Delaware corporation (the “Company”),
and each purchaser appearing on the signature page to the Purchase Agreement (as defined below) (each such purchaser, a “Purchaser”
and, collectively, the “Purchasers”).
WHEREAS, the Company and the
Purchasers are parties to that certain Securities Purchase Agreement, dated as of the date of this Agreement (the “Purchase Agreement”),
pursuant to which the Purchasers are purchasing shares of Common Stock (the “Shares”) and Pre-Funded Warrants to purchase
shares of Common Stock (the “Pre-Funded Warrants”) of the Company; and
WHEREAS, in connection with
the consummation of the transactions contemplated by the Purchase Agreement, and pursuant to the terms of the Purchase Agreement, the
parties desire to enter into this Agreement in order to grant certain registration rights to the Purchasers as set forth below.
NOW, THEREFORE, in consideration
of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties agree as follows:
1. Defined Terms.
As used in this Agreement, the following terms shall have the following meanings:
“Advice” shall
have the meaning set forth in Section 6(d).
“Agreement” shall
have the meaning set forth in the Preamble.
“CDI 612.09” means
Section 612.09 of the Commission’s Compliance and Disclosure Interpretations.
“Closing” means
the closing of the purchase and sale of the Shares and Pre-Funded Warrants pursuant to the Purchase Agreement.
“Commission” means
the U.S. Securities and Exchange Commission.
“Common Stock”
means the Company’s common stock, par value $0.0001 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“Company” shall
have the meaning set forth in the Preamble.
“Effectiveness Date”
means, with respect to the Initial Registration Statement required to be filed hereunder or any other Registration Statement, ninety (90)
days following the Closing; provided, however, that (x) in the event the Company is notified by the Commission that one or more of the
Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such
Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the
date otherwise required above, and (y) such 90-day period shall be extended on a day-for-day basis for each day by which the Filing Date
is extended pursuant to the proviso in the definition of “Filing Date” (i.e., for each Trading Day during which the Holders
are reviewing such Registration Statement pursuant to Section 3(a)).
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall
have the meaning set forth in Section 2(b).
“Event Date” shall
have the meaning set forth in Section 2(b).
“Exchange Act”
means the Securities Exchange Act of 1934.
“Filing Date”
means, with respect to the Initial Registration Statement required hereunder, thirty (30) days following the Closing, provided, however,
that such 30-day period shall be extended on a day-for-day basis for each Trading Day during which the Holders are reviewing such Registration
Statement pursuant to Section 3(a), and with respect to any additional Registration Statements which may be required pursuant to this
Agreement, the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statements
related to the Registrable Securities, subject to a day-for-day extension for any period during which the Holders are reviewing such additional
Registration Statement pursuant to Section 3(a) provided that any such extension shall not exceed the review periods expressly set forth
in Section 3(a) and shall require prior written notice from the Company to the Holders.
“Holder” or “Holders”
means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(b).
“Indemnifying Party”
shall have the meaning set forth in Section 5(b).
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses” shall
have the meaning set forth in Section 5(b).
“Person” means
an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization,
trust, association or other entity.
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Pre-Funded Warrants”
shall have the meaning ascribed to such term in the Purchase Agreement.
“Proceeding” means
any action, claim, suit, investigation or legal proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus” means
the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission
pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Purchasers” shall
have the meaning set forth in the Preamble.
“Purchase Agreement”
shall have the meaning set forth in the Recitals.
“Registrable Securities”
means (a) the Shares issued pursuant to the Purchase Agreement, (b) the Warrant Shares issuable upon exercise of the Pre-Funded Warrants
issued pursuant to the Purchase Agreement and (c) any securities issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing provided, however, that any such Registrable Securities
shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another,
Registration Statement hereunder with respect thereto) for so long as (a) a Registration Statement with respect to the sale of such Registrable
Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the
Holder in accordance with such effective Registration Statement, (b) such Registrable Securities have been previously sold in accordance
with Rule 144, or (c) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public
information pursuant to Rule 144.
“Registration Statement”
means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated
by Section 3(b), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated
by reference in any such registration statement.
2
“Rule 144” means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 415” means
Rule 415 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.
“SEC Guidance”
means (i) any publicly-available written or oral guidance (including CDI 612.09), comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“Securities Act”
means the Securities Act of 1933.
“Selling Stockholder
Questionnaire” shall have the meaning set forth in Section 3(a). “Shares” shall have the meaning ascribed to such term
in the Purchase Agreement.
“Trading Day”
means a day on which the New York Stock Exchange 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, the New York Stock Exchange or the
OTC Markets (or any successors to any of the foregoing).
“Transaction Documents”
means this Agreement, the Purchase Agreement, all schedules and exhibits thereto and hereto, and any other documents or agreements executed
in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Broadridge Corporate Issuer Solutions LLC, with a mailing address of 1155 Long Island Avenue, Edgewood, New York, NY 11717,
and a facsimile number of 1-877-830-4932, and any successor transfer agent of the Company.
“Warrant Shares”
shall have the meaning ascribed to such term in the Purchase Agreement.
2. Resale Registration.
(a) On or prior
to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the
Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 (or Form S-3 if eligible) and shall contain
a description of the Holders planned distribution (unless otherwise directed by at least an 85% majority in interest of the Holders) substantially
in the form of “Plan of Distribution” attached hereto as Annex A. The Company shall respond to any comments from
the staff of the Commission within seven days of the receipt of such comments. In the event the amount of Registrable Securities which
may be included in the Registration Statement is limited due to SEC Guidance (provided that, the Company shall use diligent efforts to
advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including
without limitation, the CDI 612.09) the Company shall use its reasonable best efforts to register such maximum portion of the Registrable
Securities as permitted by SEC Guidance. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration
Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to
the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the
Securities Act until all Registrable Securities covered by such Registration Statement have been sold, or may be sold pursuant to Rule
144 without the volume or other limitations of such rule, or not required to be registered in reliance upon the exemption in Section 4(a)(1)
or 4(a)(7) under the Securities Act, in either case as determined by the counsel to the Company pursuant to a written opinion letter to
such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). Provided,
however, during any period of time that the Company’s financial statements contained in a prospectus do not meet the requirements
of Securities Act Section 10(a)(3) and the remaining period until ten (10) days after the date its Form 10-K is required to be filed (excluding
any extended period of time permitted by rule of the SEC) does not exceed thirty (30) days, the Company shall be excused from amending
or supplementing its prospectus for the remaining period until the date its Form 10-K is required to be filed (including any extended
period of time permitted by rule of the SEC). The Company shall telephonically request effectiveness of a Registration Statement as of
5:00 p.m. New York City time on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness
of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which
shall be the date requested for effectiveness of such Registration Statement. The Company shall file a final Prospectus with the Commission
as required by Rule 424. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number
of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used
diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise
directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration
Statement will be reduced as follows: (1) first, the Company shall reduce or eliminate any securities to be included other than Registrable
Securities; and (2) second, the Company shall reduce Registrable Securities on a pro rata basis based on the total number of unregistered
Registrable Securities purchased by the Purchasers pursuant to the Purchase Agreement. In the event of a cutback hereunder, the Company
shall give the Holder at least five Trading Days prior written notice along with the calculations as to such Holder’s allotment.
3
(b) If a Registration
Statement registering for resale all of the Registrable Securities (i) is not declared effective by the Commission by the Effectiveness
Date of the Initial Registration Statement or any other Registration Statement (unless the sole reason for such non-registration
of all or any portion of the Registrable Securities is solely as a result of SEC Guidance under Rule 415 or similar rule and CDI 612.09
which limits the number of Registrable Securities which may be included in a registration statement with respect to the Holders), or (ii)
after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective
as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus
therein to resell such Registrable Securities, for more than fifteen (15) calendar days during any 12-month period (any such failure or
breach being referred to as an “Event”, and the date on which such Event occurs, being referred to as “Event Date”),
then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly
anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured,
the Company shall pay to each Holder an amount in cash , as partial liquidated damages and not as a penalty, equal to 1% of the purchase
price paid by such Holder pursuant to the Purchase Agreement, during which such Event continues uncured. If the Company fails to pay any
partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon
at a rate of 15% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Purchaser, accruing daily
from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of
an Event. Provided, however, the foregoing liquidated damages shall not accrue or be otherwise charged during
any period in which the Investor is eligible to sell the Shares on any given day under Rule 144 without the volume or other limitations
of such rule, or in reliance upon the exemption in Section 4(a)(1) under the Securities Act, or after such Investor has publicly sold
its Registrable Securities. Provided, further, notwithstanding anything to the contrary herein, with respect to any individual Holder,
liquidated damages shall not accrue or be payable to such Holder with respect to any Event under clause (i) above solely during the period
in which, and solely to the extent that, such Event results directly and solely from such Holder’s failure to deliver information
specifically required of such Holder under Item 507 of Regulation S-K within five (5) Business Days after the Company’s written
request to such Holder identifying with reasonable specificity the information required; liquidated damages shall resume accruing as to
such Holder upon delivery of the requested information, and the foregoing shall in no event affect the accrual or payment of liquidated
damages with respect to any other Holder.
4
3. Registration Procedures.
In connection with
the Company’s registration obligations hereunder, the Company shall:
(a) Not less than
three Trading Days prior to the filing of each Registration Statement and not less than one Trading Day prior to the filing of any related
Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein
by reference), the Company shall (i) furnish to the Holders copies of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference) will be subject to the review of the Holders or counsel for the Holders,
and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall
be necessary to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration
Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities
shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than two Trading Days
after the Holders have been so furnished copies of a Registration Statement or two Trading Days after the Holders have been so furnished
copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire
in the form attached to this Agreement as Annex B (a “Selling Stockholder Questionnaire”) on a date that
is not less than two Trading Days prior to the Filing Date or by the end of the fourth Trading Day following the date on which such Holder
receives draft materials in accordance with this Section.
(b) The Company
shall:
(i) prepare and
file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for
resale under the Securities Act all of the Registrable Securities,
(ii) cause the
related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and,
as so supplemented or amended, to be filed pursuant to Rule 424,
(iii) respond to
any comments received from the Commission with respect to a Registration Statement or any amendment thereto within seven days of the receipt
of such comments, and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and
to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which
would constitute material non-public information as to any Holder which has not executed a confidentiality agreement with the Company),
and
(iv) comply with
the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition
by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
5
(c) The Company
shall notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible
(and, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and (if requested by any such Person) confirm such
notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review”
of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to
a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for
that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding
for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it 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, in light of the circumstances under which they were made, not misleading and (vi) of the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that,
any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure
by a Holder is required by law; provided, further, that notwithstanding each Holder’s acknowledgement to
keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information.
(d) The Company
shall use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the
effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) The Company
shall furnish to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent
requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the
EDGAR system need not be furnished in physical form, and such number of copies of the current Prospectus as each Holder may reasonably
request.
(f) Subject to the
terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(g) Intentionally
Omitted.
6
(h) Prior to any
resale of Registrable Securities by a Holder, the Company shall use its commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of
such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during
the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions
of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(i) If requested
by a Holder, the Company shall cooperate with such Holders to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the
extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such Holder may request.
(j) If the Company
notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the
requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable
best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
(k) The Company
shall comply with all applicable rules and regulations of the Commission.
(l) The Company
may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares. The Company shall not be liable for any damages during any periods that the Company is unable to meet its obligations hereunder
with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within three
Trading Days of the Company’s request and any liquidated damages that are accruing at such time as to such Holder only shall be
tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information
is delivered to the Company.
4. Registration Expenses.
All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether
or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s
counsel, independent registered public accountants and transfer agent) (A) with respect to filings made with the Commission, (B) with
respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, (C) in compliance
with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees
and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities) and
(D) (i) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), and (ii) messenger,
telephone and delivery expenses, (iii) fees and disbursements of counsel for the Company. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any Trading Market as
required hereunder. In no event shall the Company be responsible for any broker-dealer or similar commissions of any Holder or, except
to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.
7
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents and 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 each of them, each Person who controls any such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders,
partners, agents and 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 each such controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees and costs
of investigation and preparation) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (1) any
untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement
thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance
of its obligations under this Agreement, except to the extent that (i) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information
relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto
(it being understood that the Holder has approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of
the type specified in Section 3(c)(iii)-(vi), the use by such Holder of an outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated
in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from
or in connection with the transactions contemplated by this Agreement of which the Company is aware.
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such Registration Statement, each underwriter, broker or other Person acting on behalf of the holders
of Registrable Securities and each Person who controls any of the foregoing Persons within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to
the extent arising out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of
the Securities Act or (y) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus,
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to make the statements therein not misleading (i) to the extent, but only
to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to the Company
specifically for inclusion in such Registration Statement or such Prospectus or (ii) to the extent that such information relates to such
Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such
Prospectus or in any amendment or supplement thereto or (ii) in the case of an occurrence of an event of the type specified in Section
3(c)(iii)-(vi), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that
the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section 6(d). In no event
shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds (after underwriting
fees, commissions, or discounts) actually received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
8
(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder
(an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of one
law firm reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense
thereof except as otherwise provided in this Section 5(c); provided, that, the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that
it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that
such failure shall have materially prejudiced the Indemnifying Party.
An Indemnified Party shall
have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing
to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably
believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of
any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject to the terms of this
Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to
the Indemnified Party, as incurred, within 10 Trading Days of written notice thereof to the Indemnifying Party; provided, that, the Indemnified
Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which
such Indemnified Party is judicially determined not to be entitled to indemnification hereunder.
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by,
or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’
or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.
The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission.
The indemnity and contribution
agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
9
6. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, shall be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary
damages would not provide adequate compensation for any Losses incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert or
shall waive the defense that a remedy at law would be adequate.
(b) Prohibition
on Filing Other Registration Statements. Neither the Company nor any of its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in any Registration Statements other than the Registrable Securities and shares
issued in connection with the Equity Investment (as defined in the Purchase Agreement). The Company shall not file any other resale registration
statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission,
provided that this Section 6(b) shall not prohibit the Company from filing amendments to registration statements filed prior to the date
of this Agreement or a Form S-8 or Form S-4. If the staff of the Commission or applicable SEC Guidance prevents the inclusion of all of
the Registrable Securities requested to be included in a Registration Statement due to limitations on the use of Rule 415 under the Securities
Act or other applicable rules, then the Company shall include in such Registration Statement the maximum number of Registrable Securities
that may be included without exceeding such limitations. The securities to be included in such Registration Statement shall be allocated
as follows: (i) First, the Company shall include all securities that are not Registrable Securities but have been previously registered
on an effective registration statement of the Company as of the date of this Agreement and for which the Company is contractually obligated
to include; (ii) Second, the Company shall include Registrable Securities on a pro rata basis among the Holders based on the aggregate
principal amount or Stated Value of the securities purchased by each Holder under the Purchase Agreement, relative to the total aggregate
principal amount or Stated Value of all securities purchased by all Holders under the Purchase Agreement; (iii) Third, any securities
requested to be included by other security holders with registration rights shall be included only after the full inclusion of all Registrable
Securities. In the event the Commission or SEC Guidance subsequently allows the inclusion of additional Registrable Securities, the Company
shall promptly amend the Registration Statement or file a new Registration Statement to include such additional Registrable Securities
that were previously cut back, on a pro rata basis as set forth above.
(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to
it in connection with sales of Registrable Securities pursuant to a Registration Statement.
(d) Discontinued
Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(iii) through (vi), such Holder will immediately discontinue disposition
of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its best
efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
(e) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the
Company and the Holders of more than 50% of the Registrable Securities including the Lead Investor. If a Registration Statement does not
register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number
of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall have the
right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or
some Holders and that does not directly or indirectly affect the rights of other Holders may be given by such Holder or Holders of all
of the Registrable Securities to which such waiver or consent relates; provided, however, that the provisions of this sentence may not
be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this Section 6(e).
10
(f) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Purchase Agreement.
(g) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.
(h) No Inconsistent
Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its
Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect
of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company
nor any of its Subsidiaries has previously entered into any agreement granting any registration rights with respect to any of its securities
to any Person that have not been satisfied in full.
(i) Execution
and Counterparts. 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 the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or 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 facsimile or “.pdf” signature
page were an original thereof.
(j) Governing
Law. All questions concerning the choice of law and venue, construction, validity, enforcement and interpretation of this Agreement
shall be determined in accordance with the provisions of the Purchase Agreement.
(k) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(l) 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.
(m) Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(n) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with
the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of
any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken
by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Holders are in any way acting in concert with respect to such obligations
or the transactions contemplated by this Agreement. Each Holder shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional
party in any proceeding for such purpose.
[Signature Pages Follow]
11
IN WITNESS WHEREOF, the parties
have executed this Registration Rights Agreement as of the date first written above.
COMPANY:
iSPECIMEN INC.
By:
Name:
Katharyn Field
Title:
Chief Executive Officer
PURCHASER:
By:
Name:
Title:
12
Annex A
Plan of Distribution
Each Selling Stockholder (the
“Selling Stockholders”) of the Common Stock and any of their pledgees, assignees and successors-in-interest may, from time
to time, sell any or all of their shares of Common Stock on the Trading Market or any other stock exchange, market or trading facility
on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may
use any one or more of the following methods when selling shares:
● ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
● block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction;
● purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
● an
exchange distribution in accordance with the rules of the applicable exchange;
● privately
negotiated transactions;
● settlement
of short sales entered into after the effective date of the registration statement of which this prospectus is a part;
● broker-dealers
may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share;
● through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
● a
combination of any such methods of sale; or
● any
other method permitted pursuant to applicable law.
The Selling Stockholders may
also sell shares under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather
than under this prospectus.
Broker-dealers engaged by
the Selling Stockholders may arrange for other brokers or dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary
brokerage commission in compliance with FINRA Rule 2121 or NASD Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with NASD IM-2440.
In connection with the sale
of the Common Stock or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Common Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the Common Stock short and deliver these securities to close out their short positions, or loan or
pledge the Common Stock to broker-dealers that in turn may sell these securities.
The Selling Stockholders may
also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative
securities which require the delivery to such broker- dealer or other financial institution of shares offered by this prospectus, which
shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
13
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning
of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly,
with any person to distribute the Common Stock. In no event shall any broker-dealer receive fees, commissions and markups which, in the
aggregate, would exceed eight percent.
The Company is required to
pay certain fees and expenses incurred by the Company incident to the registration of the shares. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
Because Selling Stockholders
may be deemed to be “underwriters” within the meaning of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act including Rule 172 thereunder. In addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus. There is no underwriter
or coordinating broker acting in connection with the proposed sale of the resale shares by the Selling Stockholders.
The shares will be sold only
through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the shares may not simultaneously engage in market making
activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules
and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of the Common Stock by
the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed
them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with
Rule 172 under the Securities Act).
14
Annex B
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner of common stock, par value $0.0001
per share (including shares issuable upon exercise of Pre-Funded Warrants) (the “Registrable Securities”) of iSpecimen Inc.,
a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the U.S. Securities
and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration
and resale under Rule 415 of the Securities Act of 1933 (the “Securities Act”), of the Registrable Securities, in accordance
with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed.
A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling stockholder
in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the
Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the “Selling Stockholder”)
of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
(a) Full Legal Name of Selling Stockholder:
(b) Full Legal Name of Registered Holder (if not the same
as (a) above) through which Registrable Securities are held:
(c) Full Legal Name of Natural Control Person (which means
a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
15
2. Address for Notices to Selling Stockholder:
Telephone: ________________________________
Fax: ________________________________
Contact Person: ________________________________
3. Broker-Dealer Status:
(a) Are you a broker-dealer?
☐ Yes ☐
No
(b) If “yes” to Section 3(a), did you receive
your Registrable Securities as compensation for investment banking services to the Company?
☐ Yes ☐
No
Note: If “no” to Section 3(b),
the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
☐ Yes ☐
No
(d) If you are an affiliate of a broker-dealer, do you certify
that you purchased the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities
to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
☐ Yes ☐
No
Note: If “no” to Section 3(d),
the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
4. Beneficial Ownership of Securities of the Company Owned by the
Selling Stockholder.
Except as set forth below in this Item 4, the undersigned
is not the beneficial or registered owner of any securities of the Company other than the securities issuable pursuant to the Purchase
Agreement.
(a) Type and amount of other securities beneficially owned
by the Selling Stockholder:
16
5. Relationships with the Company:
Except as set forth below, neither the undersigned nor
any of its affiliates, officers, directors or principal equity holders (owners of 5% or more of the equity securities of the undersigned)
has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
The undersigned agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement
remains effective.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and
the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon
by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus.
17
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated: ______________________
Beneficial Owner:
By:
Name:
Title:
TO:
18
EXHIBIT A
Name
and Address of Purchaser
Amount
of Securities to be Purchased
Shares
of Common Stock and/or
Pre-Funded Warrants
19
EX-10.3 — FORM OF PLACEMENT AGENT AGREEMENT, DATED MAY 8, 2026, BY AND BETWEEN THE COMPANY AND E.F. HUTTON & CO.
EX-10.3
Filename: ea029014301ex10-3.htm · Sequence: 5
Exhibit 10.3
PLACEMENT AGENCY AGREEMENT
May 7, 2026
PERSONAL AND CONFIDENTIAL
iSpecimen Inc.
8 Cabot Rd., Suite 1800
Woburn, MA 01801
Attention: Katharyn Field, Chief Executive Officer
Dear Ms. Field:
This agreement (the “Agreement”)
constitutes the agreement between E.F. Hutton & Co. (the “Placement Agent”) on one hand, and iSpecimen Inc., a
company incorporated under the laws of Delaware (the “Company” and each of the Company and the Placement Agent, a “Party”
and, together, the “Parties”) on the other hand, pursuant to which the Placement Agent shall serve as the exclusive
placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed placement (the “Placement”)
of (i) shares of common stock, par value $0.0001 per share (the “Shares”), and (ii) pre-funded warrants to purchase
shares of common stock (the “Pre-Funded Warrants” and collectively with the Shares, the “Securities”)
of the Company, having an aggregate purchase price of $[_______]. The terms of the Placement and the Securities shall be mutually agreed
upon by the Company and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”)
and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser or an obligation
for the Company to issue any Securities or complete the Placement. This Agreement and the documents executed and delivered by the Company
and the Purchasers in connection with the Placement, are collectively referred to as the “Transaction Documents.” The
closing of the Placement shall be referred to herein as the “Closing” and the date of the Closing shall be referred
to herein as the “Closing Date.” The Company expressly acknowledges and agrees that the Placement Agent’s obligations
hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not constitute a commitment by the
Placement Agent to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the
success of the Placement Agent with respect to securing any other financing on behalf of the Company. With the prior written consent of
the Company, the Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection
with the Placement.
The Company hereby confirms
its agreement with the Placement Agent as follows:
Section 1. Agreement to Act as Placement Agent.
(a) On the basis of the representations,
warranties, and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the Placement
Agent shall be the exclusive placement agent in connection with the offering and sale by the Company of the Shares and Pre-Funded Warrants,
with the terms of such offering (the “Offering”) to be subject to market conditions and negotiations between the Company,
the Placement Agent, and the prospective Purchasers. The Placement Agent will act on a reasonable best efforts basis and the Company agrees
and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective
Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite
or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the
Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective
offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities and may reject any such
offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities
shall be made at the Closing of the Offering as provided in the Purchase Agreements. As compensation for services rendered, on each Closing
Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i) A cash fee equal
to four percent (4.0%) of the aggregate gross proceeds raised in the Offering (the “Cash Fee”);
The foregoing fees
are due and payable to the Placement Agent immediately upon the closing of the Offering and shall be disbursed to the Placement Agent
simultaneously with the delivery of the proceeds of the Offering to the Company.
For the avoidance
of doubt, in the event the Company proceeds with a financing transaction outside of the Placement Agent with an Introduced Party during
the term of this Agreement, the Placement Agent shall be entitled to receive full commissions at the percentage stated above. For purposes
of this Agreement, an "Introduced Party" means any Person (and, where such Person is a natural person, his or her employer or
principal and any investment fund, account, or other vehicle managed, advised, sponsored, or controlled by such Person, such employer
or principal, or any of their respective Affiliates) initially introduced to the Company by the Placement Agent in connection with the
Offering or any Tail Financing, including any Person introduced through meetings, calls, emails, or other communications arranged or facilitated
by the Placement Agent; provided that an "Introduced Party" shall not include any Person with whom the Company had a
documented, substantive pre-existing relationship regarding a potential investment in or financing of the Company prior to the date of
such introduction by the Placement Agent.
(b) The term of the Placement
Agent’s exclusive engagement will begin on date of this Agreement and end upon Closing unless extended or earlier terminated by
the Parties in writing.
Notwithstanding anything to
the contrary contained herein, the provisions concerning the payment of fees, reimbursement of expenses, tail, indemnification and contribution,
confidentiality, conflicts, independent contractor , and waiver of the right to trial by jury will survive any expiration or termination
of this Agreement. Notwithstanding anything to the contrary contained herein, the Company has the right to terminate this Agreement for
cause in compliance with FINRA Rule 5110(g)(5)(B)(i). The exercise of such right of termination for cause eliminates the Company’s
obligations with respect to the provisions relating to the tail fees. Notwithstanding anything to the contrary contained in this Agreement,
in the event that the Offering pursuant to this Agreement shall not be carried out for any reason whatsoever during the Term, the Company
shall be obligated to pay to the Placement Agent its actual and accountable out-of-pocket expenses related to the Offering (including
the fees and disbursements of the Placement Agents; legal counsel) as set forth in Section 7 hereunder.
Nothing in this Agreement
shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage
in investment banking, financial advisory, or any other business relationship with Persons (as defined below) other than the Company.
As used herein (i) “Persons” 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 and (ii) “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 of 1933, as amended (the “Securities Act”). The Company shall furnish, or cause to be furnished, to the Placement
Agent all information requested by the Placement Agent for the purpose of rendering services hereunder and conducting due diligence (all
such information being the “Information”). In addition, the Company agrees to make available to the Placement Agent
upon request from time to time the officers, directors, accountants, counsel and other advisors of the Company. The Company recognizes
and confirms that the Placement Agent (a) will use and rely upon the Information, including any documents provided to investors in each
Offering (the “Offering Documents”) and upon information available from generally recognized public sources in performing
the services contemplated by this Agreement without having independently verified the same; (b) does not assume responsibility for the
accuracy or completeness of the Offering Documents or the Information and such other information; and (c) will not make an appraisal of
any of the assets or liabilities of the Company. Upon reasonable request, the Company will meet with the Placement Agent or its representatives
to discuss all information relevant for disclosure in the Offering Documents and will cooperate in any investigation undertaken by the
Placement Agent thereof, including any document included or incorporated by reference therein. At the request of the Placement Agent,
the Company shall deliver such legal letters, including, without limitation, negative assurance letters), opinions, comfort letters, officers’
and secretary certificates, and good standing certificates, all in a form and substance reasonably satisfactory to the Placement Agent
and its counsel as is customary for the Offering. The Placement Agent shall be a third-party beneficiary of any representations, warranties,
covenants, closing conditions and closing deliverables made by the Company in any Offering Documents, including representations, warranties,
covenants, closing conditions and closing deliverables made to any investor in the Offering.
2
(c) The Closing of the Offering
shall be conducted pursuant to the Purchase Agreement via wire transfer and such Securities shall be registered in such name or names
and shall be in such denominations. The Placement Agent shall not have any independent obligation to verify the accuracy or completeness
of any information contained in Purchase Agreement or other subscription documents for the Offering (the “Subscription Documents”)
or the authenticity, sufficiency, or validity of any check delivered by any prospective Investor in payment for the Securities, nor shall
the Placement Agent incur any liability with respect to any such verification or failure to verify.
Section 2. Representations, Warranties, and
Covenants of the Company.
(a) The Placement Agent shall
be the third-party beneficiary of the representations and warranties of the Company to the Purchasers in the Purchase Agreement.
(b) Any certificate signed
by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement Agent shall be deemed to be a representation
and warranty by the Company to the Placement Agent as to the matters set forth therein.
(c) The Company acknowledges
that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations and warranties and hereby consents
to such reliance.
(d) In connection with the
Offering of the Securities, the Company has not published, distributed, issued, posted, or otherwise used or employed and shall not publish,
distribute, issue, post, or otherwise use or employ (i) any form of general solicitation or advertising within the meaning of Rule 502
under the Securities Act (“General Solicitation”) other than with the prior written consent of the Placement Agent,
or (ii) any General Solicitation that constitutes a written communication within the meaning of Rule 405 under the Securities Act (“Written
General Solicitation Material”). Each individual Written General Solicitation Material, if any, does not and will not conflict
with the information contained in the SEC Reports (as defined below), and does not and will not, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) The Company will furnish
a copy of any amendment or supplement to a Written General Solicitation Material to the Placement Agent and counsel for the Placement
Agent and obtain the Placement Agent’s written consent prior to any publication, distribution, issuance, posting, or other use or
employment of any such amendment or supplement.
(f) If at any time after the
date hereof and prior to a Closing, any event shall have occurred as a result of which any Written General Solicitation Material, as then
amended or supplemented, would conflict with the information in the Company’s reports, schedules, forms, statements, and other documents
required to be filed by the Company under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (collectively, the “SEC Reports”), or would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein or in the SEC Reports, in light of the circumstances under
which they were made, not misleading, or, if for any other reason it shall become necessary to amend or supplement any Written General
Solicitation Material, the Company shall promptly notify the Placement Agent and upon its request, shall use its best efforts to ensure
that all purchasers or expected purchasers of the Securities receive corrected Written General Solicitation Materials.
(g) The Company represents,
warrants, and agrees that all sales of the Securities shall be made only to (i) an “accredited investor” as defined in 501(a)(1),
(a)(2), (a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9), (a)(10), (a)(11), (a)(12), or (a)(13) under the Securities Act, as applicable,
or (ii), a Non U.S. Person as defined under Regulation S promulgated under the Securities Act. Notwithstanding the foregoing, the Placement
Agent shall use commercially reasonable efforts to assist its customers to complete the Subscription Documents.
3
(h) None of the Company, any
of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the Offering,
any beneficial owner of twenty percent (20%) or more of the Company’s outstanding voting equity securities, calculated on the basis
of voting power, any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity
at the time of sale nor any compensated solicitor or any director, executive officer, or other officer of the compensated solicitor participating
in the Offering (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject
to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care
to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable,
with its disclosure obligations under Rule 506(e), and has furnished to the Placement Agent a copy of any disclosures provided thereunder.
(i) The Company will notify
the Placement Agent in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and
(ii) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.
(j) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement, including, without limitation, the issuance of the Securities, and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the Securities 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 of the Company (“Board”), or the Company’s shareholders
in connection herewith or therewith. This Agreement and any other applicable agreement, 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.
(k) Issuance of the
Securities. The Securities will be duly authorized, validly issued, fully paid, and non- assessable upon payment of the purchase price
therefor to the Company in accordance with the terms of the Purchase Agreement, and will have the applicable rights, preferences, and
priorities set forth in the Company’s Memorandum Articles of Association (including the Certificate of Incorporation and any other
charter documents of the Company) (as the same may be amended or restated from time to time, collectively, the “Charter”).
The holders of the Securities will not be subject to personal liability solely by reason of being such holders. The Securities have been
duly authorized and, when issued in accordance with this Agreement will be duly and validly issued, fully paid and nonassessable, free
and clear of all liens, charges, pledges, security interests, encumbrances, or other restrictions imposed by the Company other than restrictions
provided for in this Agreement and in the Securities Purchase Agreement. The Company has reserved from its duly authorized capital stock
the maximum number of shares of Common Stock issuable upon exercise of the Pre-Funded Warrants. The issuance of the Securities are not
subject to any preemptive rights, rights of first refusal, or other similar rights of any securityholder of the Company. No holder of
the Securities will be subject to personal liability solely by reason of being such a holder.
(l) Each of the representations
and warranties (together with any related disclosure schedules thereto) made by the Company to the Purchasers in the applicable Transaction
Documents is hereby incorporated herein by reference, as though fully restated herein, and is hereby made to, and in favor of, the Placement
Agent.
Section 3. Delivery and Payment. The Closing
shall occur at the offices of Sichenzia Ross Ference Carmel LLP (“Company Counsel”) (or at such other place as shall
be agreed upon by the Parties, including via remote transmission of Closing documentation and the Transaction Documents). Subject to the
terms and conditions hereof, at the Closing, payment of the purchase price for the Securities sold on the Closing Date shall be made by
federal funds via wire transfer, and such Securities shall be registered in such name or names and shall be in such denominations, as
the Placement Agent may request at least one business day before the time of purchase.
4
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Company Counsel. All actions taken at the Closing
shall be deemed to have occurred simultaneously. The Company and the Placement Agent may agree to conduct one or more Closings of the
Offering.
Section 4. Closing. The obligations of
the Placement Agent and the closing of the sale of the Shares and Pre-Funded Warrants (the “Placement Agent Securities”) are
subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part the Company contained herein
and in the Purchase Agreement, to the performance by the Company of its obligations hereunder and under the Purchase Agreement, and to
each of the following additional conditions, any of which may be waived in writing by the Placement Agent:
(a) Corporate Proceedings and Legal Opinion. All corporate proceedings and other legal matters incident to the authorization, execution, and delivery of this Agreement, the Purchase Agreement, the Pre-Funded Warrants, and the transactions contemplated hereby shall be completed or resolved in a manner reasonably satisfactory to the Placement Agent. The Placement Agent shall have received a legal opinion from Company Counsel, addressed to the Placement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
(b) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, in the Placement Agent’s sole judgment after consultation with the Company, there shall not have occurred any material adverse change or development involving a prospective material adverse change in the condition or the business activities, financial or otherwise, of the Company since the filing of its Annual Report on Form 10-K for the period ended December 31, 2025 on April 1, 2026 (a “Material Adverse Change”)).
(c) Officer’s and Secretary’s Certificates. The Placement Agent has received customary certificates of the Company’s Chief Executive Officer (the “Officer’s Certificate”) as to the accuracy of the representations and warranties contained in the Purchase Agreement, and a certificate of the Company’s Secretary (or other suitable executive officer) (the “Secretary’s Certificate”) certifying (i) that the Company’s organizational documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors (or any authorized committee thereof) relating to the Placement are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company. Each of the Officer’s Certificate and Secretary’s Certificate must be dated as of the Closing Date, and all documents referenced in the Secretary’s Certificate must be attached thereto. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the U.S. national securities exchange on which it is listed, nor has the Company received any information suggesting that the Commission or the Trading Market or other U.S. applicable national exchange is contemplating terminating such registration or listing.
(d) Certificate of Good Standing. The Company shall deliver a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware as of a date within five (5) Business Days of the Closing Date.
(e) Lock-Up Agreements. The Placement Agent shall have received duly executed Lock-Up Agreements in form and substance reasonably satisfactory to the Placement Agent, duly executed and delivered by the Company, each of its directors, executive officers, and any shareholder holding five percent (5%) or more of the Company’s outstanding common stock, pursuant to which such persons agree not to, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, or otherwise dispose of any shares of the Company’s securities during the 180 days period following the Closing, subject to customary exceptions.
(f) Purchase Agreement and Other Deliverables. The Company shall have delivered, or caused to be delivered, all deliverables set forth in the Purchase Agreement, including the Registration Rights Agreement, in form and substance reasonably satisfactory to the Placement Agent and its counsel, and such agreements shall be in full force and effect.
(g) No Legal Impediment. No statute, regulation, rule, executive order, decree, ruling, or injunction shall have been enacted, entered, promulgated, or endorsed by any court or governmental authority of competent jurisdiction which prohibits or materially adversely affects any of the transactions contemplated by this Agreement.
If any of the foregoing conditions shall not have
been satisfied on or before the Closing Date, the Placement Agent may terminate this Agreement, without liability to the Company, by written
notice to the Company. Any such termination shall not affect the obligations of the Company to reimburse the Placement Agent for expenses
or its indemnification and contribution obligations as set forth in this Agreement.
5
Section 5. Covenants and Agreements of the
Company and Placement Agent. The Company further covenants and agrees with the Placement Agent as follows:
(a) Blue Sky Compliance.
The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities
laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make
such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the
Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction
where it is not now so qualified or required to file such a consent, and provided further that the Company shall not
be required to produce any new disclosure documents. The Company will, from time to time, prepare and file such statements, reports, and
other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably
request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the applicable Securities for the offering, sale, or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest
possible moment.
(b) Amendments, Supplements
and Other Matters. The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission
thereunder, so as to permit the completion of the sale of the Securities as contemplated in this Agreement. If during the Offering period,
any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or Zarif Law Group
P.C. (“Placement Agent Counsel”) acting as counsel for the Placement Agent, it becomes necessary to amend or supplement the
SEC Reports in order to make the statements therein, in light of the circumstances under which they were made, as the case may be, not
misleading, or if it is necessary at any time to amend or supplement the SEC Reports, the Company will promptly prepare an appropriate
amendment or supplement to the SEC Reports, that is necessary in order to make the statements therein as so amended or supplemented, in
light of the circumstances under which they were made, as the case may be, not misleading, or so that the SEC Reports, as so amended or
supplemented, will comply with law. Before amending the SEC Reports, the Company will furnish the Placement Agent with a copy of such
proposed amendment or supplement and will not distribute any such amendment or supplement to which the Placement Agent reasonably objects.
(c) Copies of any
Amendments and Supplements to the SEC Reports. The Company will furnish the Placement Agent, without charge, during the period beginning
on the date hereof and ending on the Closing Date, as many copies of the SEC Reports and other documents to be furnished to the Purchasers
as the Placement Agent may reasonably request; provided that the Company’s filing of the SEC Reports on the Electronic
Data Gathering and Analysis Retrieval system of the SEC shall be deemed to satisfy this covenant.
(d) Transfer Agent.
The Company will maintain, at its expense, a transfer agent for the Securities.
(e) Periodic Reporting
Obligations. For as long as the Company remains subject to the reporting requirements of the Exchange Act, the Company will duly file,
on a timely basis, with the Commission and The Nasdaq Stock Market LLC, or any successor U.S. national securities exchange, all reports
and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
(f) Additional Documents. The
Company will enter into any customary Closing documentation as the Placement Agent or the Purchasers deem necessary or appropriate to
consummate the Offering, all of which will be in form and substance reasonably acceptable to the Placement Agent and the Purchasers.
(g) No Manipulation
of Price. The Company has not taken, directly or indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any of its securities, including of its
Common Stock.
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(h) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board and
may not be used, reproduced, disseminated, quoted, or referred to, without the Placement Agent’s prior written consent.
(i) Announcement of
Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing and at the Placement Agent’s
expense, make public its involvement with the Offering.
(j) Reliance on Others.
The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(k) Research Matters.
By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly, of favorable or continued
research coverage of the Company, and the Company hereby acknowledges and agrees that the Placement Agent’s selection as a placement
agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing favorable or any research
coverage of the Company. In accordance with FINRA Rule 2711(e), the parties hereto acknowledge and agree that the Placement Agent has
not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change research,
a rating or a price target, to the Company or inducement for the receipt of business or compensation. The Company hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any conflict
of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may
be different from or inconsistent with the views or advice communicated to the Company by the Placement Agent’s investment banking
divisions. The Company acknowledges that the Placement Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short position
in debt or equity securities of the Company.
Section 6. Conditions of the Obligations of
the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy of the representations and
warranties on the part of the Company set forth in Section 2 and in the Transaction Documents, in each case as of the
date hereof and as of the Closing Date as though then made, to the timely performance by each of the Company of its covenants and other
obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a) Transaction Documents.
The Transactions Documents between the Company and the Purchasers shall have been executed and delivered.
(b) Corporate Proceedings.
All corporate proceedings and other legal matters in connection with this Agreement and the sale and delivery of the Securities, shall
have been completed or resolved in a manner reasonably satisfactory to the Placement Agent Counsel.
(c) No Material Adverse
Change. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, in the Placement Agent’s sole
judgment after consultation with the Company, there shall not have occurred any (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 of the Company (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.
(d) Placement Agent
Compensation. The Cash Fee calculated in the manner provided in Section 1(a), and reimbursement of expenses as set forth
in Section 7 shall have been paid or delivered to the Placement Agent by wire transfer of immediately available funds
to an account specified by the Placement Agent to the Company prior to the Closing.
If any condition specified
in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement
Agent by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 7 (Payment of Expenses), Section 8 (Indemnification
and Contribution), Section 9 (Representations and Indemnities to Survive Delivery), and Section 15 (Tail)
shall at all times be effective and shall survive such termination.
7
Section 7. Payment of Expenses. Subject
to the following, the Company shall reimburse the Placement Agent Promptly upon request for all reasonable and accountable out-of-pocket
expenses incurred in connection with the Offering, whether or not there is a closing of the Offering, including but not limited to road
show and travel expenses (including, if applicable, the costs associated with the use of a third-party electronic road show service (such
as Net Roadshow), due diligence expenses, the costs of background checks on the Company’s officers and directors and any of its
shareholders designated by the Placement Agent, the costs associated with the Placement Agent’s use of book- building and compliance
software, the fees and expenses of the Placement Agent’s legal counsel and any other independent advisors selected and retained
by the Placement Agent, and all fees, expenses and disbursements required under the Bluck Sky securities laws of such states and other
jurisdictions as the Placement Agent may reasonably designate (with the Company’s consent, which shall not be unreasonably withheld),
provided that the expenses reimbursable to the Placement Agent under this Section 7 shall not exceed $50,000. In addition, the Company
shall pay Placement Agent a non-refundable cash fee equal to 1% of the gross proceeds of the Placement as a non-accountable expense allowance.
The Company will bear all fees, disbursements
and expenses in connection with any proposed Offering, including, without limitation, the Company’s legal and accounting fees and
disbursements; the costs of preparing, printing, mailing and delivering the Registration Statement, the preliminary and final prospectus
contained therein and amendments thereto, post-effective amendments and supplements thereto, any other offering materials, the Placement
Agent Agreement and related documents (all in such quantities as the Placement Agent may reasonably require); preparing and printing stock
certificates; the costs of any “due diligence” meetings; filing fees (including SEC filing fees), costs and expenses (including
third party expenses and disbursements) incurred in registering the Offering, FINRA filing fees; costs and expenses of making any required
filings or notices under applicable state securities or “blue sky” laws as specified by the Placement Agent, including Form
D filings under Regulation D, but excluding those costs and expenses that FINRA regulations require to be borne by a selling agent, placement
agent or underwriter. The Company will also sign the Placement Agent’s agreement with its Counsel acknowledging that the Company
is liable to pay the legal fees on the Placement Agent’s behalf which should be paid from the proceeds of the Offering this Agreement.
Section 8. Indemnification and Contribution.
(a) The Company agrees to
indemnify and hold harmless the Placement Agent, its affiliates, and each person controlling the Placement Agent (within the meaning of
Section 15 of the Securities Act), and the directors, officers, agents, shareholders, and employees of the Placement Agent, its affiliates
and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”) from
and against any losses, claims, damages, judgments, assessments, costs, and other liabilities, including reasonable attorneys’ fees
(collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses (including
the reasonable fees and expenses of one counsel for all Indemnified Persons, except as otherwise expressly provided herein) (collectively,
the “Expenses”) as they are incurred by an Indemnified Person in investigating, preparing, pursuing, or defending any
actions, whether or not any Indemnified Person is a party thereto, (i) caused by a breach by the Company of any of its representations,
warranties, or covenants contained in this Agreement or in any certificate delivered by or on behalf of the Company in connection with
this Agreement, (ii) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material
fact contained in the SEC Reports or by any omission or alleged omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (other than untrue statements or alleged untrue statements
in, or omissions or alleged omissions from, information relating to an Indemnified Person furnished in writing by or on behalf of such
Indemnified Person expressly for use in such documents), or (iii) otherwise arising out of or in connection with advice or services rendered
or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s
actions or inactions in connection with any such advice, services, or transactions; provided, however, that, in
the case of clause (iii) only, the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person that have
resulted primarily from such Indemnified Person’s (x) gross negligence, bad faith, or willful misconduct in connection with any
of the advice, actions, inactions, or services referred to above or (y) use of any Offering materials or information concerning the Company
in connection with the offer or sale of the Securities in the Offering which were not authorized for such use by the Company and which
use constitutes gross negligence, bad faith, or willful misconduct. The Company also agrees to reimburse each Indemnified Person for all
Expenses as they are incurred in connection with enforcing such Indemnified Person’s rights under this Agreement.
8
In this regard, and without
limitation, the Company acknowledges that the Placement Agent is not responsible for the actions of the Introduced Parties or their agents.
The Company acknowledges that none of the Indemnified Parties is acting as an attorney, accountant, or negotiator, that the Placement
Agent will not make any recommendations about the Transaction, and that the Company will seek its own professional advice with respect
to any transaction. The Placement Agent may or may not act as broker-dealer or financial advisor to the Company in any transaction.
(b) Upon receipt by an Indemnified
Person of actual notice of an action against such Indemnified Person with respect to which indemnity may be sought under this Agreement,
such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified Person
so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity or otherwise
to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall, if requested
by the Placement Agent, assume the defense of any such action including the employment of counsel reasonably satisfactory to the Placement
Agent, which counsel may also be Company Counsel. Any Indemnified Person 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 Indemnified Person unless:
(i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties to any such action (including any
impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall have been advised in the reasonable
opinion of counsel that there is an actual conflict of interest that prevents the counsel selected by the Company from representing both
the Company (or another client of such counsel) and any Indemnified Person; provided that the Company shall not in such
event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified Persons in connection
with any Action or related Actions, in addition to any local counsel. The Company shall not be liable for any settlement of any action
effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior
written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise, or consent to the entry of any
judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution may be
sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent, or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage, or liability is incurred and is due and payable.
(c) In the event that the
foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company shall contribute
to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect (i) the relative
benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other hand, of the matters
contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted by applicable law,
not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agent and any other Indemnified
Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate, as well as any other relevant
equitable considerations; provided that in no event shall the Company contribute less than the amount necessary to ensure
that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees actually
received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company, on the
one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in the same
proportion as (i) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company in the
transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears to
(ii) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, shall be entitled to contribution from a party who was not guilty of fraudulent
misrepresentation.
9
(d) The Company also agrees
that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for
or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions
contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services, or transactions
except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted primarily from such
Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions, or services.
(e) The reimbursement, indemnity,
and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement and shall remain in full
force and effect regardless of any termination of, or the completion of any Indemnified Person’s services under or in connection
with, this Agreement.
(f) The Placement Agent and
the Company agree that the obligations of each of the Parties are solely corporate obligations, and that no officer, director, employee,
agent, or shareholder of either Party shall be subjected to any personal liability whatsoever to any person, nor will any claim for liability
or suit be asserted by, or on behalf of, either the Placement Agent or the Company. In no event shall the Placement Agent be liable to
the Company, nor will the Company be liable to the Placement Agent, whether a claim be in tort, contract or otherwise, for any amount
in excess of the total amount paid by the Company to the Placement Agent under this Agreement.
Section 9. Representations and Indemnities
to Survive Delivery. The respective indemnities, agreements, representations, warranties, and other statements of the Company or any
person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Company, or any of its or their
partners, officers, or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement. A successor to the Placement Agent, or to the Company, its directors or officers
or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution, and reimbursement agreements
contained in this Agreement.
Section 10. Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered, telecopied, or e-mailed and confirmed to the parties hereto as follows:
If to E.F. Hutton & Co.:
E.F. Hutton & Co.
745 Fifth Avenue, 34th Floor & PH
New York, NY 10151
Attn: Joseph T. Rallo
Email: jrallo@efhutton.com
With a copy (which shall not constitute notice)
to:
Zarif Law Group P.C.
808 Springwood Avenue, Suite 110
Asbury Park, NJ 07712
Attn: Morris C. Zarif, Esq.
Email: mzarif@zariflg.com
If to the Company:
iSpecimen Inc.
8 Cabot Rd., Suite 1800
Woburn, MA 01801
Attn: Katharyn Field
Email: kfield@ispecimen.com
With a copy (which shall not constitute notice)
to:
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas, 26th floor
New York, NY 10036
Attn: Ross D. Carmel, Esq.
Email: rcarmel@srfc.law
10
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
Section 11. Prior Agreement. By entering
into this Agreement, the parties hereto agree that that any prior letter of engagement between the parties relating to the Offering, shall
automatically terminate and cease to have any effect whatsoever and shall be superseded in its entirety by this Agreement.
Section 12. Successors and Assignment.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers, and
directors and controlling persons referred to in Section 8 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section 13. Partial Unenforceability. The
invalidity or unenforceability of any section, paragraph, or provision of this Agreement shall not affect the validity or enforceability
of any other section, paragraph, or provision hereof. If any Section, paragraph, or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 14. Governing Law Provisions. This
Agreement and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect, and in all
other respects by the internal laws of the State of Florida, without regard to the conflict of laws principles thereof. The Placement
Agent and the Company agree that with respect to any controversy or claim relating to, arising under or involving this Agreement or breach
thereof (a “Claim”), the matter shall first be submitted for mediation through the Judicial Arbitration and Mediation
Service, Inc. (“JAMS”) and its applicable rules in New York, New York, provided, however, that in the case of a breach
or threatened breach of the non-circumvention covenant stated herein, the Placement Agent may seek and obtain, in addition to any remedies
available under this Agreement or applicable law, an injunction or other equitable relief from any court of competent jurisdiction and
nothing in this Agreement shall in any way limit or condition its right and recourse to seek and obtain such equitable relief. In the
event that the Placement Agent and the Company are not able to agree on a mediator within thirty (30) days of the first party seeking
mediation, the presiding Judge of the Superior Court of the county which the venue would lie for the filing of a complaint for relief
in such Claim shall have jurisdiction to appoint a mediator. The parties covenant that they will participate in the mediation in good
faith.
In the event that the Placement Agent and the
Company are unable to resolve any claim after mediation as set forth in the preceding paragraph, then the parties hereby agree that such
Claim shall be submitted to JAMS for final and binding arbitration pursuant to its Comprehensive Arbitration Rules and Procedures (the
“Arbitration Rules”) in New York, New York. The arbitration shall be conducted before a neutral arbitrator who shall
be an attorney or retired Judge and shall be selected in accordance with the Arbitration Rules. The arbitrator’s award shall be
final and binding on all parties. Except to the extent otherwise required pursuant to the applicable JAMS rules and procedures and applicable
law, each party will pay the fees of its respective attorney(s), expert(s), and other fees.
Without limiting the mediation and arbitration
provisions set forth above, each party hereby irrevocably agrees and consents to be subject to the jurisdiction of the state court sitting
in New York County, State of New York, or if the state court lacks jurisdiction, the United States District Court for the Southern District
of New York, in any suit, action or proceeding pursuant to this Agreement. Each party hereby irrevocably consents to the service of any
and all process in any such suit, action or proceeding by the delivery of such process in person, by overnight courier, facsimile or first
class mail with a copy to email to such party as set forth in Section 10 hereof.
11
Section 15. Tail.
If there is a Closing of the
Offering, or if this Agreement terminates prior to Closing (other than a termination for cause in compliance with FINRA Rule 5110(g)(5)(B)(i)),
the Placement Agent shall be entitled to compensation under Section 1 hereof, calculated in the manner set forth therein, with respect
to any public offering or other equity financing of any kind (the “Tail Financing”) to the extent that such financing or capital
is provided to the Company by investors that the Placement Agent had introduced to the Company during the Term (if such Financing is consummated
at any time within the 12-month period following the expiration or termination of this Agreement), as evidenced by a written list of such
investors delivered by the Placement Agent to the Company within a reasonable time following the expiration or termination of this Agreement.
Notwithstanding the foregoing, the failure of the Placement Agent to include any investor on such written list shall not, without prejudice,
preclude such investor from being deemed an investor introduced by the Placement Agent and subject to the Tail Financing compensation
hereunder if the Placement Agent can provide documented evidence that such investor was introduced to the Company by the Placement Agent
as an Introduced Party during the Term.
Section 16. Lock-Up.
The Company agrees that, during
the period beginning on the date hereof and ending 180 days after the date of the Closing of an Offering (the “Lock-Up Period”),
the Company’s officers, directors, and any shareholder holding five percent (5%) or more of the Company’s outstanding common
stock will not, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, or otherwise dispose of any shares
of the Company’s Securities. The Placement Agent shall serve as the sole lock-up release agent for any lock-up agreed to in connection
with the Offering, and no release of any lock-up obligation shall be effective without the prior written consent of the Placement Agent.
Section 17. General Provisions.
(a) This Agreement constitutes
the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements,
understandings, and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein are for the convenience
of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The Company acknowledges
that in connection with the offering of the Securities: (i) the Placement Agent has acted at arm’s length, are not agents of, and
owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only those duties and obligations
set forth in this Agreement, and (iii) the Placement Agent may have interests that differ from those of the Company. The Company waives
to the full extent permitted by applicable law any claims it may have against the Placement Agent arising from an alleged breach of fiduciary
duty in connection with the offering of the Securities.
(c) The Company shall be responsible
for any and all compliance with the securities laws applicable to it, including without limitation, Regulation D and the Securities Act,
and Rule 506 promulgated thereunder, and all state securities laws.
(c) Each Party agrees not
to mention the name of the other Party or its agents in any press release or news announcement without the express written consent of
the other party.
(d) This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the
same instrument. Delivery of an executed counterpart of this Agreement by facsimile, email (including .pdf) or other electronic transmission
shall be equally as effective as delivery of a manually executed counterpart.
Section 18. Confidentiality.
In the event of the consummation or public announcement
of the Offering, the Placement shall have the right to disclose its participation in such offering, including, without limitation, the
Offering at its own cost of “tombstone” advertisements in financial and other newspapers and journals.
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Section 19. Limitations on Engagement; Limitations
of Placement Agent Liability
(a) The Company acknowledges
that the Placement Agent has been retained only by the Company, that the Placement Agent is providing services hereunder as an independent
contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of the Placement Agent is not deemed
to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not
a party hereto as against the Placement Agent or any of its affiliates, or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents. Unless otherwise
expressly agreed in writing by the Placement Agent, no one other than the Company is authorized to rely upon this Agreement or any other
statements or conduct of the Placement Agent, and no one other than the Company is intended to be a beneficiary of this Agreement. The
Company acknowledges that any recommendation or advice, written or oral, given by the Placement Agent to the Company in connection with
the Placement Agent’s engagement is intended solely for the benefit and use o the Company’s management and directors in considering
a possible Offering and any such recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other
persons or be used or relied upon for any other purpose.
(b) The Placement Agent and
the Company agree that neither the Placement Agent nor any of its affiliates or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any
liability to the Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company
(whether direct or indirect, in contract, torn, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs,
expenses or equitable relief arising out of or relating to this Agreement or the services rendered hereunder, except for losses, fees,
damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by the Placement Agent and that
are finally judicially determined to have resulted solely from the gross negligence or willful misconduct of the Placement Agent.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
13
[SIGNATURE PAGE TO THE PLACEMENT AGENCY AGREEMENT]
If the foregoing is in accordance
with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become
a binding agreement in accordance with its terms.
Very truly yours,
E.F. Hutton & Co.
By:
Name:
Title:
The foregoing Placement Agency
Agreement is hereby confirmed and accepted as of the date first above written.
iSpecimen Inc.
By:
Name:
Katharyn Field
Title:
Chief Executive Officer
14
EX-99.1 — PRESS RELEASE DATED MAY 8, 2026
EX-99.1
Filename: ea029014301ex99-1.htm · Sequence: 6
Exhibit 99.1
iSpecimen Inc. Announces Pricing of Approximately $2.5 Million Private
Placement
May 8, 2026
WOBURN, Mass., May 08, 2026 (GLOBE NEWSWIRE) -- iSpecimen Inc. (Nasdaq:
ISPC) (“iSpecimen” or the “Company”), an online global marketplace that connects scientists requiring biospecimens
for medical research with a network of healthcare specimen providers, today announced that it has priced a private placement with accredited
investors for aggregate gross proceeds of approximately $2.5 million, before deducting fees to the placement agent and other offering
expenses payable by the Company.
In connection with the offering, the Company will issue 488,281 shares
of common stock (the “Shares”) at a purchase price of $5.12 per Share. In lieu of Shares that would otherwise result in a
purchaser’s beneficial ownership exceeding 4.99% of the outstanding common stock, certain purchasers may elect to receive pre-funded
warrants (the “Pre-Funded Warrants”) at a purchase price of $5.1199 per Pre-Funded Warrant (equal to the per Share purchase
price less $0.0001). Each Pre-Funded Warrant is exercisable immediately upon issuance for one share of common stock at an exercise price
of $0.0001 per share and will remain exercisable until exercised in full.
The Company intends to use the net proceeds from the offering for working
capital purposes, including up to $900,000 in marketing expenses.
The offering is expected to close on or about May 11, 2026, subject
to the satisfaction of customary closing conditions. Pursuant to the terms of the transaction documents, the aggregate number of shares
of common stock issuable to the purchasers in the offering (including upon exercise of the Pre-Funded Warrants and giving effect to any
anti-dilution and price adjustment provisions thereunder) is subject to a cap of 19.99% of the Company's outstanding common stock immediately
prior to the execution of the securities purchase agreement, until such time as the Company obtains the approval of its stockholders required
under applicable Nasdaq Listing Rules. The Company has agreed to file a preliminary proxy statement with the SEC within 30 days following
the closing of the offering and to hold a meeting of stockholders to seek such approval within 90 days following the closing.
E.F. Hutton & Co. is acting as the exclusive placement agent in
connection with the offering.
Sichenzia Ross Ference Carmel LLP is serving as counsel to the Company.
Zarif Law Group P.C. is serving as counsel to E.F. Hutton & Co. in connection with the offering.
Additional details regarding the offering will be available in a Form
8-K to be filed by the Company with the Securities and Exchange Commission (the “SEC”).
The securities to be issued in connection with the offering described
above are being offered in a private placement under Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”),
and Regulation D promulgated thereunder and have not been registered under the 1933 Act or applicable state securities laws. Accordingly,
such securities may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable
exemption from the registration requirements of the 1933 Act and such applicable state securities laws. The securities were offered only
to accredited investors. Pursuant to a registration rights agreement with the investors, the Company has agreed to file one or more registration
statements with the SEC covering the resale of the Shares and the shares of common stock issuable upon exercise of the Pre-Funded Warrants
issued in the offering.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy any of the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
About iSpecimen
iSpecimen (Nasdaq: ISPC) offers an online marketplace
for human biospecimens, connecting scientists in commercial and non-profit organizations with healthcare providers that have access to
patients and specimens needed for medical discovery. Proprietary, cloud-based technology enables scientists to intuitively search for
specimens and patients across a federated partner network of hospitals, labs, biobanks, blood centers and other healthcare organizations.
For more information, please visit www.ispecimen.com.
Cautionary Note Regarding Forward-Looking Statements
This press release contains “forward-looking statements”
within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements are statements other than statements of historical
fact and may be identified by the use of words or expressions such as “may,” “should,” “could,” “would,”
“will,” “expect,” “anticipate,” “intend,” “plan,” “believe,” “estimate,”
“continue,” “seek,” “potential,” “target,” “project,” “forecast,”
“outlook,” or similar expressions, or by discussions of strategy, plans, or intentions.
Forward-looking statements in this press release include, without limitation,
statements regarding: the expected closing of the offering and the satisfaction of the conditions thereto; the anticipated gross and net
proceeds from the offering; the Company’s intended use of proceeds, including for working capital and marketing expenses; the Company’s
ability to obtain the approval of its stockholders required under applicable Nasdaq Listing Rules in connection with the offering and
the related transaction documents, and the timing thereof; the Company’s ability to timely file and have declared effective a registration
statement covering the resale of the shares of common stock issued in the offering and the shares of common stock issuable upon exercise
of the Pre-Funded Warrants; the implementation of any anti-dilution, most-favored-nation, or price adjustment provisions contained in
the transaction documents; the Company’s ability to maintain compliance with the continued listing standards of The Nasdaq Capital
Market; the Company’s ability to continue as a going concern and to access additional capital on acceptable terms, or at all; the
Company’s commercial strategy and operations, including the iSpecimen Marketplace and the Company’s relationships with healthcare
specimen providers and research customers; and any other statements regarding future events, plans, or expectations.
These forward-looking statements are based on management’s current
expectations and assumptions and are subject to risks, uncertainties, and other factors, many of which are beyond the Company’s
control, that could cause actual results to differ materially from those expressed or implied. Such risks and uncertainties include, without
limitation: the risk that the conditions to closing the offering may not be satisfied on the anticipated timeline or at all; the risk
that the Company may fail to obtain the required stockholder approval under applicable Nasdaq Listing Rules within the timeframes contemplated
by the transaction documents, or at all, which would limit the Company’s ability to issue additional shares to investors and could
trigger the termination of certain price-protection and most-favored-nation provisions; the substantial dilution to the Company’s
existing stockholders that may result from the issuance of shares in the offering, the exercise of the Pre-Funded Warrants, and any anti-dilution,
most-favored-nation, or price adjustments under the transaction documents; the Company’s ability to maintain compliance with the
continued listing standards of The Nasdaq Capital Market and the consequences of any failure to do so on the Company’s ability to
raise capital; the substantial doubt regarding the Company’s ability to continue as a going concern and the Company’s need
for additional financing to fund its operations; and the other risks and uncertainties described under the heading “Risk Factors”
in the Company’s filings with the Securities and Exchange Commission, as well as general business, economic, market, and geopolitical
conditions.
Actual results may differ materially from those expressed or implied
by these forward-looking statements. Additional information regarding factors that may cause actual results to differ materially is included
under the heading “Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2025, filed
with the Securities and Exchange Commission on April 1, 2026, and in the Company’s subsequent Quarterly Reports on Form 10-Q and
other filings with the Securities and Exchange Commission, copies of which are available free of charge through the Securities and Exchange
Commission’s website at www.sec.gov. The forward-looking statements
in this press release speak only as of the date of this press release. Except as required by applicable law, the Company undertakes no
obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events, changed
circumstances, or otherwise.
info@ispecimen.com
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