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2024-10-31
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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):
October 31, 2024
OS THERAPIES
INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware |
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001-42195 |
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82-5118368 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
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(IRS Employer
Identification No.) |
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland |
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21638 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s telephone number, including
area code: (410) 297-7793
N/A
(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 (see General
Instruction A.2. below):
|
☐ |
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 |
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Trading Symbol(s) |
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Name of Each Exchange on Which Registered |
Common Stock, par value $0.001 per share |
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OSTX |
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NYSE American |
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.
CURRENT REPORT ON FORM 8-K
OS Therapies Incorporated
October 31, 2024
Item
1.01 Entry into a Material Definitive Agreement.
On October 31, 2024, OS Therapies Incorporated, an ADC and immunotherapy
research and clinical-stage biopharmaceutical company (the “Company,” “we,” “us” or “our”),
entered into an Equity Purchase Agreement (the “Equity Purchase Agreement”) with Square Gate Capital Master Fund, LLC-Series
3 (the “Investor”), pursuant to which the Company will have the right, but not the obligation, to sell to the Investor, and
the Investor will have the obligation to purchase from the Company, up to $15,000,000 (the “Maximum Commitment Amount”) worth
of the Company’s shares of common stock, at the Company’s sole discretion, over the next 24 months (the “Put Shares”),
subject to certain conditions precedent and other limitations. The Investor has covenanted not to cause or engage in any short sales or
hedging transactions with respect to the shares of the Company’s common stock. No warrants to purchase common shares will be issued
at any time in connection with the transaction.
Unless earlier terminated,
the Equity Purchase Agreement will remain in effect until the earlier of October 31, 2026 (i.e., the expiry of the 24-month period
commencing on the date of the Equity Purchase Agreement) or the date on which the Investor has purchased the Maximum Commitment Amount
(the “Commitment Period”). The Company has the right to terminate the Equity Purchase Agreement at any time after the effectiveness
of the Registration Statement, for any reason or for no reason, by delivering written notice to the Investor without any liability, provided
that the Investor does not hold any Put Shares.
There are no restrictions on future financings (other than during the
period when a Put is outstanding following a Put Notice) and no penalties or liquidated damages in the Purchase Agreement or Registration
Rights Agreement, subject to an exception for failure to file the Registration Statement (as defined below) when required and to obtain
timely effectiveness of the Registration Statement.
During the Commitment Period,
the Company will have the right, but not the obligation, to direct the Investor to make a purchase of the Put Shares by delivering written
notice to the Investor (a “Put Notice”) on any trading day (the “Put Date”) to purchase a number of Put Shares
pursuant to a formula set forth in the Equity Purchase Agreement. The number of Put Shares that the Company can issue to the Investor
from time to time under the Equity Purchase Agreement may not exceed 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to the issuance of shares issuable pursuant to a Put Notice.
The per share purchase price
for the Put Shares that we elect to sell to the Investor in a Put Notice pursuant to the Equity Purchase Agreement will be equal to 95%
of the lowest daily VWAP during the Valuation Period (as defined in the Equity Purchase Agreement), in the case of a Valuation Period
ending on the date that is at the end of the third trading day immediately following the applicable Put Date; or the lower of (x) the
lowest daily VWAP, and (y) the intraday VWAP during the Valuation Period, in the case of a Valuation Period ending at such time during
a trading day after the applicable Put Date, when the intraday traded price of the common stock has fallen below 70% of the closing price
of our common stock on the NYSE American on the applicable Put Date.
Concurrently with the execution of the Equity Purchase Agreement, the
Company also agreed to issue to the Investor, as part of the consideration, shares of the Company’s common stock worth a total of
3% of the Maximum Commitment amount (the “Initial Commitment Shares”). The ultimate calculation of the per share price of
the Initial Commitment Shares will occur on the date immediately prior to the Registration Statement being declared effective.
The Equity Purchase Agreement
and Registration Rights Agreement contain customary representations, warranties and agreements by the Company and customary conditions
to the Investor’s obligation to purchase the Put Shares. Actual sales of shares of our common stock, if any, to the Investor under
the Equity Purchase Agreement will depend on a variety of factors to be determined by the Company from time to time, including, among
others, market conditions, the trading price of the Company’s common stock and determinations by the Company as to the appropriate
sources of funding for the Company and its operations. The net proceeds to us from sales of our common stock to the Investor under the
Equity Purchase Agreement, if any, will depend on the frequency and prices at which the Company sells shares to the Investor under the
Equity Purchase Agreement. Any proceeds that the Company receives from sales of shares of our common stock to the Investor under the Equity
Purchase Agreement will be used to advance our clinical development programs and expand our discovery, research and preclinical activities
in the near term and in the future.
On October 31, 2024, the Company
entered into a registration rights agreement (the “Registration Rights Agreement”) with the Investor, pursuant to which the
Company agreed to submit to the U.S. Securities and Exchange Commission (the “SEC”) an initial registration statement
on Form S-1 (as amended, the “Registration Statement”) by November 15, 2024 covering the resale of the Commitment Shares,
which may have been, or which may from time to time be, issued under the Equity Purchase Agreement for public resale, and to use its best
efforts to cause the Registration Statement to be declared effective by the SEC.
The foregoing description
of the Equity Purchase Agreement and Registration Rights Agreement is a summary of the material terms of each such agreement, does not
purport to be complete, and is qualified in its entirety by reference to the full text of the Equity Purchase Agreement and Registration
Rights Agreement, which are filed as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained
in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02. The shares of common stock are
being offered and sold by the Company to the Investor under the Equity Purchase Agreement in reliance upon an exemption from the registration
requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act of 1933 and Rule 506(b) of Regulation D promulgated
thereunder.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
* | Certain exhibits to this Exhibit have been omitted pursuant
to Item 601(a)(5) or Item 601(b)(10)(iv), as applicable, of Regulation S-K. The Registrant agrees to furnish supplemental copies of all
omitted exhibits to the Securities and Exchange Commission upon its request. |
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.
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OS THERAPIES INCORPORATED |
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Dated: November 1, 2024 |
By: |
/s/ Paul A. Romness, MPH |
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Name: |
Paul A. Romness, MPH |
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Title: |
President and Chief Executive Officer |
3
Exhibit 10.1
EQUITY PURCHASE AGREEMENT
THIS EQUITY PURCHASE
AGREEMENT (this “Agreement”) is entered into as of October 31, 2024 (the “Execution Date”), by and
between OS Therapies Incorporated, a corporation incorporated in the State of Delaware (the “Company”), and Square
Gate Capital Master Fund, LLC - Series 3, a series of a limited liability company organized in the State of Delaware (the “Investor”).
RECITALS
WHEREAS, the parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the Investor, from time
to time as provided herein, and the Investor shall purchase from the Company up to Fifteen Million Dollars ($15,000,000.00) of the Company’s
Common Stock (as defined below);
NOW, THEREFORE,
in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 RECITALS.
The parties acknowledge and agree that the recitals set forth above are true and correct and are hereby incorporated in and made a part
of this Agreement.
Section 1.2 DEFINED
TERMS. As used in this Agreement, the following terms shall have the following meanings specified or indicated (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
“Affiliate” shall have the meaning set
forth in Section 3.5.
“Agreement” shall have the meaning specified
in the preamble hereof.
“Available
Amount” means, initially, the Maximum Commitment Amount, which amount shall be reduced by the Investment Amount following each
successful Closing, each time the Investor purchases Put Shares.
“Average
Daily Trading Volume” shall mean the average trading volume of the Common Stock on the applicable Trading Days.
“Bankruptcy Law” means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Claim Notice” shall have the meaning specified
in Section 9.3(a).
“Clearing
Costs” shall mean all of the Investor’s broker and Transfer Agent fees.
“Clearing
Date” shall be the date on which the Investor receives the Put Shares as DWAC Shares in its brokerage account.
“Closing”
shall mean one of the closings of a purchase and sale of Common Stock pursuant to Section 2.3.
“Closing Certificate”
shall mean the closing “Officer’s Certificate” of the Company in the form of Exhibit B hereto.
“Closing Date” shall mean the date of any
Closing hereunder.
“Commitment
Period” shall mean the period commencing on the Execution Date, and ending on the earlier of (i) the date on which the Investor
shall have purchased Put Shares pursuant to this Agreement equal to the Maximum Commitment Amount, (ii) October 31, 2026, (iii) provided
that the Registration Statement shall have been previously declared effective by the SEC, the written notice of termination by the Company
to the Investor (which shall not occur at any time that the Investor holds any of the Put Shares), or (iv) written notice of termination
by the Investor to the Company pursuant to Section 6.1 or Section 6.4.
“Commitment
Shares” means Common Stock issued by the Company to the Investor pursuant to Section 6.4.
“Common
Stock” means the common stock of the Company, having a par value per share of $0.001, and any shares of any other class of common
stock of the Company whether now or hereafter authorized, having the right to participate in the distribution of dividends (as and when
declared) and assets (upon liquidation of the Company).
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” shall have the meaning specified
in the preamble to this Agreement.
“Confidential Information”
means any information disclosed by either party to this Agreement, or their Affiliates, agents or representatives, to the other party
to this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation,
documents, formulae, business information, trade secrets, technology, strategies. prototypes, samples, plant and equipment), which may
or may not be designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information. Confidential Information may also include information disclosed by third parties.
Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the
public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after
disclosure by the disclosing party to the receiving party through no fault, action or inaction of the receiving party; (iii) is already
in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files
and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of
such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference
to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s
possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing
party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information
from public disclosure.
“Current Report” shall have the meaning
set forth in Section 6.3.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Damages”
shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees and disbursements
and costs and expenses of expert witnesses and investigation).
“Dispute Period” shall have the meaning
specified in Section 9.3(a).
“Disqualification Event” shall have the
meaning specified in Section 4.27.
“DTC” shall mean The
Depository Trust Company, or any successor performing substantially the same function for the Company.
“DTC/FAST Program” shall mean the DTC’s
Fast Automated Securities Transfer Program.
“DWAC” shall mean Deposit Withdrawal at
Custodian as defined by the DTC.
“DWAC
Eligible” shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s operational arrangements,
including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Commitment Shares
or Put Shares, as applicable, are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting
or limiting delivery of the Put Shares or Commitment Shares, as applicable, via DWAC.
“DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified DWAC account
with DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
“Eligible
Market” means the Principal Market or any nationally recognized exchange upon which the Common Stock is listed.
“Environmental Laws” shall
have the meaning set forth in Section 4.14.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Execution Date” shall have the meaning
set forth in the preamble to this Agreement.
“FINRA” shall mean the Financial Industry
Regulatory Authority, Inc.
“Indemnified Party” shall have the meaning
specified in Section 9.2.
“Indemnifying Party” shall have the meaning
specified in Section 9.2.
“Indemnity Notice” shall have the meaning
specified in Section 9.3(b).
“Intellectual
Property” shall mean all trademarks, trademark applications, trade names, service marks, service mark registrations, service
names, patents, patent applications, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets
or other intellectual property rights.
“Intraday
VWAP” means, for the Common Stock as of any Trading Day, the dollar volume-weighted average price for the Common Stock on the
Principal Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) during the period beginning at
9:30:01 a.m., New York City time, or such other time publicly announced by the Principal Market (or by such Eligible Market, as applicable)
as the official open (or commencement) of trading on the Principal Market (or on such Eligible Market, as applicable) on such Trading
Day, and ending when the intraday traded price of the Common Stock shall have fallen below 70% of the closing price of the Common Stock
on the Principal Market on the applicable Put Date. All such determinations shall be appropriately adjusted for any stock dividend, stock
split, stock combination, recapitalization or other similar transaction during such period.
“Investment
Amount” shall mean the dollar value equal to the amount of Put Shares referenced in the Put Notice multiplied by the Purchase
Price.
“Investor” shall have the meaning specified
in the preamble to this Agreement.
“Issuer Covered Person” shall have the
meaning specified in Section 4.27.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or any other restriction.
“Material
Adverse Effect” shall mean any effect on the business, operations, properties, or financial condition of the Company and/or
the Subsidiaries that is material and adverse to the Company and/or the Subsidiaries and/or any condition, circumstance, or situation
that would prohibit or otherwise materially interfere with the ability of the Company and/or the Subsidiaries to enter into and/or perform
its obligations under any Transaction Document and which shall be deemed to include any investigation of the Company, its directors or
its officers by the SEC.
“Maximum Commitment Amount”
shall mean Fifteen Million Dollars ($15,000,000.00).
“Maximum
Put Amount” shall mean the lesser of (i) one hundred percent (100%) of the Average Daily Trading Volume over the five (5) Trading
Days preceding the applicable Put Date, (ii) thirty percent (30%) of the daily trading volume over the applicable Put Date, and (iii)
the quotient (rounded up or down to the nearest whole number) obtained by dividing (x) $500,000 by (y) the closing price on the applicable
Put Date (in each case to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction during the applicable period).
“Person”
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Principal Market” shall mean the NYSE
American stock exchange.
“Purchase
Price” shall mean ninety-five (95%) of (x) the lowest daily VWAP during the Valuation Period in the case of a Valuation Period
ending pursuant to clause (i) of the definition of Valuation Period, or (y) the lower of (I) the lowest daily VWAP, and (II) the Intraday
VWAP during the Valuation Period in the case of a Valuation Period ending pursuant to clause (ii) of the definition of Valuation Period.
“Put”
shall mean the right of the Company to require the Investor to purchase Common Stock at the Purchase Price, subject to the terms and conditions
of this Agreement.
“Put Date”
shall mean any Trading Day during the Commitment Period that a Put Notice is deemed delivered pursuant to Section 2.2(b).
“Put
Notice” shall mean a written notice, substantially in the form of Exhibit A hereto, addressed to the Investor and setting
forth the amount of Put Shares which the Company intends to require the Investor to purchase pursuant to the terms of this Agreement.
“Put
Shares” shall mean all shares of Common Stock issued, or that the Company shall be entitled to issue, per any applicable Put
Notice in accordance with the terms and conditions of this Agreement.
“Registration
Rights Agreement” means that agreement in the form attached hereto as Exhibit D.
“Registration Statement” shall have the
meaning specified in Section 6.3.
“Regulation D” shall mean Regulation D
promulgated under the Securities Act.
“Rule 144”
shall mean Rule 144 promulgated under the Securities Act or any similar provision then in force under the Securities Act.
“SEC” shall mean the United States Securities
and Exchange Commission.
“SEC Documents” shall have the meaning
specified in Section 4.5.
“Securities” means, collectively, the Put
Shares and the Commitment Shares.
“Securities Act” shall mean the Securities
Act of 1933, as amended.
“Short Sales”
shall mean all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.
“Subsidiary”
or “Subsidiaries” means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly,
owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of
Regulation S-K promulgated under the Securities Act.
“Third Party Claim” shall have the meaning
specified in Section 9.3(a).
“Trading Day”
means any full trading day (beginning at 9:30:01 a.m., New York City time, and ending at 4:00 p.m., New York City time) on the Principal
Market or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market.
“Transaction
Documents” shall mean this Agreement, the Registration Rights Agreement, the Transfer Agent Instruction Letter and all schedules
and exhibits hereto and thereto.
“Transfer
Agent” shall mean VStock Transfer, LLC, the current transfer agent of the Company, and any successor transfer agent of the Company.
“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent to issue
the Put Shares and the Commitment Shares pursuant to the Transaction Documents, in the form of Exhibit C attached hereto.
“Valuation
Period” shall mean the period during which the Purchase Price of the Common Stock is valued beginning on the Trading Day immediately
following the applicable Put Date and ending on the earlier of (i) the date that is at the end of the third Trading Day immediately following
the applicable Put Date and (ii) such time during a Trading Day after the applicable Put Date, when the intraday traded price of the Common
Stock shall have fallen below 70% of the closing price of the Common Stock on the Principal Market on the applicable Put Date, as reported
by Bloomberg Finance L.P. or other reputable source. For the avoidance of doubt, the Valuation Period may consist of a partial Trading
Day.
“VWAP”
means, for the Common Stock as of any Trading Day, the dollar volume-weighted average price for the Common Stock on the Principal Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) during the period beginning at 9:30:01 a.m., New
York City time, or such other time publicly announced by the Principal Market (or by such Eligible Market, as applicable) as the official
open (or commencement) of trading on the Principal Market (or on such Eligible Market, as applicable) on such Trading Day, and ending
at 4:00 p.m., New York City time, or such other time publicly announced by the Principal Market (or by such Eligible Market, as applicable)
as the official close of trading on the Principal Market (or on such Eligible Market, as applicable) on such Trading Day, as reported
by Bloomberg, L.P. (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties). All such determinations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction
during such period.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 PUTS.
Subject to the terms and conditions set forth herein (including, without limitation, the provisions of Article VII), the Company
shall have the right, but not the obligation, to direct the Investor, to process a Put by its delivery to the Investor of a Put Notice
from time to time during the Commitment Period, to purchase Put Shares, provided that notwithstanding any other terms of this Agreement,
in each instance unless waived by the Investor in its sole discretion, (i) the Put Shares are not more than the Maximum Put Amount for
any Put, (ii) the aggregate Investment Amount of all Puts shall not exceed the Maximum Commitment Amount, (iii) at least one (1) Trading
Day has lapsed since the most recent Closing Date of a Put, and (iv) all Common Stock resulting from prior submitted Put Notices for Puts
have been delivered. Notwithstanding the foregoing, the Company and the Investor may agree in respect of any Put that the amount of Put
Shares in respect of such Put may exceed the applicable Maximum Put Amount; provided that such amount does not exceed an amount that is
500% of such applicable Maximum Put Amount.
Section 2.2 MECHANICS.
(a) PUT
NOTICE. At any time and from time to time during the Commitment Period, except as provided in this Agreement, the Company may cause
a Put by delivering a Put Notice to the Investor via email, subject to satisfaction of the conditions set forth in Section 2.1,
Section 7.1 and otherwise provided in this Agreement. The Company shall deliver, or cause to be delivered, the Put Shares as DWAC
Shares to the Investor as required pursuant to Section 2.3(a).
(b) DATE OF DELIVERY OF
PUT NOTICE. A Put Notice shall be deemed delivered on a Trading Day if it is received by e-mail by the Investor if such notice is
received on or after 4:00 p.m. EST and prior to 6:30 p.m. EST on such Trading Day (“Put Notice Delivery Window”).
If a Put Notice is not received by the Investor during a Put Notice Delivery Window, the Investor in its sole discretion may choose to
deem such Put Notice to have been delivered on the Trading Day in which it was received by notice to the Company no later than 8:00 p.m.
EST on the Trading Day it was received. If (i) the Investor does not provide notice of such acceptance, or (ii) unless waived by the
Investor, if the closing price of the Common Stock on the Principal Market (or on such Eligible Market, as applicable) on the Trading
Day the Put Notice is received is less than $0.50 per share, the Put Notice will be deemed withdrawn.
Section 2.3 CLOSINGS.
(a) TIMING. The Clearing
Date of a Put shall occur on the Trading Day following the delivery of the applicable Put Notice in accordance with Section 2.2(b),
whereby the Company shall deliver, or cause to be delivered the Put Shares as DWAC shares to the Investor not later than 11:30 a.m. (New
York City Time) (the “Share Delivery Deadline”). The Closing of a Put shall occur two (2) Trading Days following the
end of the Valuation Period. In addition, on or prior to any such Closing or on the date of the delivery of the applicable Put Notice,
as required pursuant to Section 7.1, each of the Company and the Investor shall deliver to each other all documents, instruments
and writings required to be delivered or reasonably requested by either of them pursuant to this Agreement in order to implement and
effect the transactions contemplated herein. In addition to any other rights available to the Investor, if the Company fails to cause
the Transfer Agent to transmit to the Investor Put Shares pursuant to a Put Notice before the applicable Share Delivery Deadline, the
Investor may elect to deem such Put Notice rescinded. Payment of the Investment Amount minus the Clearing Costs related to any Put Notice
shall be made by the Investor by wire transfer of immediately available funds to an account designated by the Company not later than
one (1) Trading Day following the end of the applicable Valuation Period, as may be adjusted for any credit of a Cover Price available
to the Investor in accordance with Section 2.3(b). The amount of Clearing Costs which may be deducted pursuant to the foregoing
sentence shall be subject to a cap of $2,500 per Put.
(b) Compensation
for Failure to Timely Deliver PUT Shares. In addition to any other rights available to the Investor, if the Company fails
to cause the Transfer Agent to transmit to the Investor Put Shares pursuant to a Put Notice before the applicable Share Delivery Deadline,
and if after such Share Delivery Deadline the Investor purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Investor of such Put Shares that the Investor anticipated receiving from the Company in respect
of such Put Notice, then the Company shall, within two (2) Trading Days after the Investor’s request, which such request shall
be made within two (2) Trading Days following the Share Delivery Deadline, either (i) pay cash to the Investor in an amount equal to
the Investor’s total purchase price (including brokerage commissions, if any) for the Common Stock so purchased (the “Cover
Price”), at which point the Company’s obligation to deliver such Put Shares shall terminate, (ii) promptly honor its
obligation to deliver to the Investor such Put Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if
any) of the Cover Price over the total Investment Amount paid by the Investor in connection with such Put Notice, or (iii) be deemed
to have accepted notice that such Cover Price shall be credited as the Investment Amount to be paid in respect of one or more subsequent
Put Notices, in the discretion of the Investor. The Investor shall provide the Company with written notice indicating the amounts payable
to the Investor in respect of the Cover Price and evidence of the amount of such amounts payable. Nothing herein shall limit the Investor’s
right to pursue a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
shares of Common Stock in connection with a Put Notice.
(c) RETURN OF SURPLUS; RETURN
OF SHARES UPON SHORTENING OF VALUATION PERIOD. If the value of the Put Shares delivered to the Investor causes the Company to exceed
the Maximum Commitment Amount, then the Investor shall return to the Company the surplus amount of Put Shares associated with such Put,
and the Purchase Price with respect to such Put shall be reduced by any Clearing Costs incurred related to the return of such Put Shares.
If a Valuation Period shall be less than three (3) full Trading Days, the Investor shall have the right in its sole discretion to return
to the Company any Put Shares not sold during such Valuation Period and to be reimbursed by the Company for any Clearing Costs related
to such returned Put Shares.
(d) RESALES DURING VALUATION
PERIOD. The parties acknowledge and agree that during a Valuation Period, the Investor may contract for, or otherwise effect, the
resale of the subject purchased Put Shares to third-parties.
Section 2.4 OPTIONAL ADDITIONAL
PUT SHARES. Following the Put Date in respect of any Put, the Company and Investor may agree to increase the amount of Put Shares
relating to such Put up to an amount equal to 500% of the applicable Maximum Put Amount for such Put. Such mutual agreement, if any, must
be made after the relevant Put Notice is delivered but before 4:00 p.m. New York City time on the last Trading Day of the applicable Valuation
Period. Following any such agreement, the Company agrees that it shall deliver, or cause to be delivered any such additional Put Shares
as DWAC Shares to the Investor on the Trading Day following the date the Company and the Investor shall have agreed to such increase by
11:30 a.m. New York City time. A failure to deliver such additional Put Shares by such time shall entitle the Investor to the rights set
forth in Section 2.3(b) in respect of such failure.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF INVESTOR
The Investor represents and warrants to the Company
that as of the Execution Date, each date a Put Notice is submitted and at each Closing Date:
Section 3.1 INTENT.
The Investor is entering into this Agreement for its own account, for investment purposes and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration requirements
of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree, or make any representation
or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities
at any time in accordance with, or pursuant to, a registration statement filed pursuant to the Registration Rights Agreement or an applicable
exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly or indirectly, with
any Person to sell or distribute any of the Shares. The Investor acknowledges that it will be disclosed as an “underwriter”
and a “selling stockholder” in each Registration Statement and in any prospectus contained therein.
Section 3.2 NO
LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges that it has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel and investment and tax advisors. Except with respect to the representations,
warranties and covenants contained in this Agreement, the Investor is relying solely on such counsel and advisors and not on any statements
or representations of the Company or any of its representatives or agents for legal, tax or investment advice with respect to this investment,
the transactions contemplated by this Agreement or the securities laws of any jurisdiction.
Section 3.3 ACCREDITED
INVESTOR. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the Investor has such experience
in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities. The Investor
acknowledges that an investment in the Securities is speculative and involves a high degree of risk.
Section 3.4 AUTHORITY.
The Investor has the requisite power and authority to enter into and perform its obligations under this Agreement and the other Transaction
Documents and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the other
Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all
necessary action and no further consent or authorization of the Investor is required. Each Transaction Document to which it is a party
has been duly executed by the Investor, and when delivered by the Investor in accordance with the terms hereof, will constitute the valid
and binding obligation of the Investor enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,
or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles
of general application.
Section 3.5 NOT
AN AFFILIATE. To the Investor’s knowledge, the Investor is not an officer, director or “affiliate” (as such term
is defined in Rule 405 of the Securities Act) of the Company.
Section 3.6 ORGANIZATION
AND STANDING. The Investor is an entity duly formed, validly existing and in good standing under the laws of the jurisdiction of its
formation with full right, limited liability company power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the other Transaction Documents.
Section 3.7 ABSENCE
OF CONFLICTS. The execution and delivery of this Agreement and the other Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby and compliance with the requirements hereof and thereof, will not (a) violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the Investor, (b) violate any provision of any indenture, instrument or
agreement to which the Investor is a party or is subject, or by which the Investor or any of its assets is bound, or conflict with or
constitute a material default thereunder, (c) result in the creation or imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval
of any third-party (that has not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation
to which the Investor is subject or to which any of its assets, operations or management may be subject.
Section 3.8 DISCLOSURE;
ACCESS TO INFORMATION. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to
the business, finances and operations of the Company and information the Investor deemed material to making an informed investment decision.
The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management
and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor
or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on
the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company
has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the
Company, its employees or any third party other than the representations and warranties of the Company contained in Article IV.
The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice,
as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 3.9 MANNER
OF SALE. At no time was the Investor presented with or solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertisement regarding the Securities.
Section 3.10 TRADING
ACTIVITES. The Investor’s trading activities with respect to the shares of Common Stock shall be in compliance with all applicable
federal and state securities laws, rules and regulations and the rules and regulations of the Principal Market. Neither the Investor nor
its Affiliates has any open short position in the shares of Common Stock, nor has the Investor entered into any hedging transaction that
establishes a net short position with respect to the shares of Common Stock, and the Investor agrees that it shall not, and that it will
cause its Affiliates not to, engage in any short sales or hedging transactions with respect to the shares of Common Stock; provided that
the Company acknowledges and agrees that upon receipt of a Put Notice the Investor has the right to sell (a) the Put Shares to be issued
to the Investor pursuant to the Put Notice prior to receiving such Put Shares, or (b) other Put Shares issued or sold by the Company to
Investor pursuant to this Agreement and which the Company has continuously held as a long position.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE
COMPANY
The Company represents
and warrants to the Investor that, except as set forth in the disclosure schedules hereto that as of the Execution Date, each date a Put
Notice is submitted and at each Closing Date:
Section 4.1 ORGANIZATION
OF THE COMPANY. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State
of Delaware, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently
conducted. 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. Each of the Company and the Subsidiaries is not in violation or default
of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result
in 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.
Section 4.2 AUTHORITY.
The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other
Transaction Documents. The execution and delivery of this Agreement and the other Transaction Documents by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent
or authorization of the Company or its board of directors or stockholders is required. Each of this Agreement and the other Transaction
Documents has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles
of general application.
Section 4.3 CAPITALIZATION.
As of the Execution Date, the authorized capital stock of the Company is expected to be as set forth on Schedule 4.3. Except as
set forth in the SEC Documents or on Schedule 4.3, the Company has not issued any capital stock since its most recently filed periodic
report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans,
the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the
conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the
Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. Except as set forth in the SEC Documents or on Schedule 4.3, and
except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or 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. The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities
to any Person (other than the Investor) 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 stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among
any of the Company’s stockholders.
Section 4.4 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 twelve (12) months preceding the Execution Date, received notice from the Principal Market 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.
Section 4.5
SEC DOCUMENTS; DISCLOSURE. 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 one (1) year
preceding the Execution Date (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 Documents”) on a timely basis or has received a valid extension of such time of filing and has filed any such
SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and other federal laws, rules and regulations
applicable to such SEC Documents, and none of the SEC Documents when filed contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial
statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may
be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates
thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments). The Company maintains a system of internal accounting controls appropriate for its size. There
is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that
is not disclosed by the Company in its financial statements or otherwise that would be reasonably likely to have a Material Adverse Effect.
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 the Investor or its agents or counsel with any information that
it believes constitutes or might constitute material, non- public information. The Company understands and confirms that the Investor
will rely on the foregoing representation in effecting transactions in securities of the Company.
Section 4.6 VALID
ISSUANCES. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents,
will be validly issued, fully paid, and non-assessable, free and clear of all Liens imposed by the Company, other than restrictions on
transfer provided for in the Transaction Documents and under the Securities Act.
Section 4.7 NO
CONFLICTS. The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company, and the consummation
by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Put Shares and
the Commitment Shares, do not and will not: (a) result in a violation of the Company’s or any Subsidiary’s certificate or
articles of incorporation, by-laws or other organizational or charter documents, (b) conflict with, or constitute a material default (or
an event that with notice or lapse of time or both would become a material 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 of, any agreement, indenture, instrument or any “lock-up” or similar provision of any underwriting or similar
agreement to which the Company or any Subsidiary is a party, or (c) result in a violation of any federal, state or local law, rule, regulation,
order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or any Subsidiary or
by which any property or asset of the Company or any Subsidiary is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect),
nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing. The business of the Company is not
being conducted in violation of any law, ordinance or regulation of any governmental entity. The Company is not required under federal,
state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or the other Transaction
Documents (other than any SEC, FINRA or state securities filings that may be required to be made by the Company in connection with the
issuance of the Commitment Shares or subsequent to any Closing or any registration statement that may be filed pursuant hereto); provided
that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of Investor herein.
Section 4.8 NO
MATERIAL ADVERSE CHANGE. No event has occurred that would have a Material Adverse Effect on the Company or any Subsidiary that has
not been disclosed in subsequent SEC filings.
Section 4.9 LITIGATION
AND OTHER PROCEEDINGS. Except as set forth on Schedule 4.9, there are no actions, suits, investigations, inquiries or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties,
nor has the Company received any written or oral notice of any such action, suit, proceeding, inquiry or investigation, which would have
a Material Adverse Effect or would require disclosure under the Securities Act or the Exchange Act. No judgment, order, writ, injunction
or decree or award has been issued by or, to the knowledge of the Company, requested of any court, arbitrator or governmental agency which
would have a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any Subsidiary, or any current or former director or officer of the Company or any Subsidiary.
Section 4.10
REGISTRATION RIGHTS. Except as set forth on Schedule 4.10, no Person (other than the Investor) has any right to cause the
Company to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
Section 4.11
INVESTOR’S STATUS. The Company acknowledges and agrees that the Investor is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated hereby and thereby and any advice given by the Investor or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Investor’s
purchase of the Securities. The Company further represents to the Investor that the Company’s decision to enter into the Transaction
Documents has been based solely on the independent evaluation by the Company and its representatives and advisors.
Section 4.12 NO
GENERAL SOLICITATION; NO INTEGRATED OFFERING. Neither the Company, any Subsidiary, nor any of their respective Affiliates, nor any
Person acting on their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D under the Securities Act) in connection with the offer or sale of the Securities. Neither the Company, any Subsidiary, nor any of their
respective Affiliates, nor any Person acting on 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 require registration of the offer and sale of any of the Securities
under the Securities Act, whether through integration with prior offerings or otherwise.
Section 4.13 INTELLECTUAL
PROPERTY RIGHTS. The Company and each Subsidiary own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. None of the Company’s,
nor any Subsidiary’s Intellectual Property has expired or terminated, or, by the terms and conditions thereof, could expire or terminate
within three years from the date of this Agreement if such expiration or termination could reasonably be expected to have a Material Adverse
Effect. The Company does not have any knowledge of any infringement by the Company and/or any Subsidiary of any material Intellectual
Property of others, or of any such development of similar or identical trade secrets or technical information by others, and there is
no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the Company
and/or any Subsidiary regarding the infringement of any Intellectual Property, which could reasonably be expected to have a Material Adverse
Effect.
Section 4.14 ENVIRONMENTAL
LAWS. To the Company’s knowledge, the Company and each Subsidiary (i) is in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct its respective businesses and (iii) is in compliance with
all terms and conditions of any such permit, license or approval, except where, in each of the three foregoing clauses, the failure to
so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.15
TITLE. Except as disclosed in the SEC Documents, the Company and each Subsidiary has good and marketable title in fee simple to
all real property owned by it and good and marketable title in all personal property owned by it that is material to the business of the
Company and each Subsidiary, in each case free and clear of all Liens and, except for Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company or any Subsidiary and
Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company or any Subsidiary is held under valid, subsisting and enforceable leases with
which the Company is in compliance with such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company or any Subsidiary.
Section 4.16
INSURANCE. The Company and each Subsidiary is insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and
each Subsidiary is engaged. Neither the Company, nor any Subsidiary has been refused any insurance coverage sought or applied for, and
the Company has no reason to believe that it or any Subsidiary will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would
not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Company, taken
as a whole.
Section 4.17 REGULATORY
PERMITS. The Company and each Subsidiary possesses all material certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to conduct its businesses, and neither the Company, nor any
Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization
or permit.
Section 4.18 TAX STATUS.
The Company and each Subsidiary has made or filed all federal and state income and all other material tax returns, reports and declarations
required by any jurisdiction to which it is subject (unless and only to the extent that the Company has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested
in good faith and has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.
Section 4.19 TRANSACTIONS
WITH AFFILIATES. Except as set forth in the SEC Documents, none of the officers or directors of the Company or any Subsidiary, and
to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of the lesser of
(i) $120,000 or (ii) one percent of the average of the Company’s total assets at year end for the last two completed fiscal years,
other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the
Company or any Subsidiary and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
Section 4.20 APPLICATION
OF TAKEOVER PROTECTIONS. The Company and its board of directors have taken or will take prior to the Execution Date all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the articles of incorporation or the laws of the state of its
incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the Securities.
Section 4.21 FOREIGN
CORRUPT PRACTICES. Neither the Company, any Subsidiary, nor to the knowledge of the Company, any agent or other Person acting on behalf
of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company or any Subsidiary (or made by any Person acting on its behalf of which the Company is aware) which
is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
Section 4.22 SARBANES-OXLEY.
The Company is in compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it.
Section 4.23 CERTAIN
FEES. Except as set forth in the disclosure schedule, no brokerage or finder’s fees or commissions are or will be payable by
the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect
to the transactions contemplated by the Transaction Documents. The Investor shall have no obligation with respect to any fees or with
respect to any claims made by or on behalf of any Persons for fees of a type contemplated in this Section 4.23 that may be due
in connection with the transactions contemplated by the Transaction Documents.
Section 4.24 INVESTMENT
COMPANY. The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 4.25 ACCOUNTANTS.
The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such accountants are an independent
registered public accounting firm as required by the Securities Act.
Section 4.26 NO MARKET
MANIPULATION. Neither the Company, nor any Subsidiary has, and to its knowledge no Person acting on either of their behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to
purchase any other securities of the Company.
Section 4.27
NO DISQUALIFICATION EVENTS. None of the Company, any Subsidiary, any of their predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company or any Subsidiary participating in the offering contemplated hereby, 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 (each, an
“Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)
under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2)
or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject
to a Disqualification Event.
Section 4.28 MONEY
LAUNDERING. The Company and each Subsidiary is in compliance with, and has not previously violated, the USA PATRIOT ACT of 2001 and
all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, the laws, regulations
and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to
(i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B,
Chapter V.
Section 4.29 ILLEGAL OR
UNAUTHORIZED PAYMENTS; POLITICAL CONTRIBUTIONS. Neither the Company, nor any Subsidiary has, nor, to the best of the Company’s
knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives
of the Company, any Subsidiary or any other business entity or enterprise with which the Company is or has been affiliated or associated,
has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, whether or not in
contravention of applicable law, (a) as a kickback or bribe to any Person or (b) to any political organization, or the holder of or any
aspirant to any elective or appointive public office except for personal political contributions not involving the direct or indirect
use of funds of the Company.
Section 4.30 SHELL
COMPANY STATUS. The Company is not currently an issuer identified in Rule 144(i)(1)(i) under the Securities Act, is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, has filed all reports and other materials required to be filed by Section
13 or 15(d) of the Exchange Act, as applicable during the preceding 12 months, and, as of a date at least one year prior to the Execution
Date, has filed current “Form 10 information” with the SEC (as defined in Rule 144(i)(3) of the Securities Act) reflecting
its status as an entity that is no longer an issuer described in Rule 144(i)(1)(i) of the Securities Act.
Section 4.31
ABSENCE OF SCHEDULES. In the event that on the Execution Date, the Company does not deliver any disclosure schedule contemplated
by this Agreement, the Company hereby acknowledges and agrees that (i) each such undelivered disclosure schedule shall be deemed to read
as follows: “Nothing to Disclose”, and (ii) the Investor has not otherwise waived delivery of such disclosure schedule.
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 COMPLIANCE
WITH LAW; TRADING IN SECURITIES. The Investor’s trading activities with respect to the Common Stock will be in compliance with
all applicable state and federal securities laws and regulations and the rules and regulations of FINRA and the Principal Market.
Section 5.2 SHORT
SALES AND CONFIDENTIALITY. Neither the Investor, nor any Affiliate of the Investor acting on its behalf or pursuant to any understanding
with it, will in any manner whatsoever, directly or indirectly, (i) participate in or execute any Short Sales during the period from the
Execution Date to the end of the Commitment Period or (ii) any hedging transaction that would create a net short position with respect
to the shares of Common Stock. For the purposes hereof, and in accordance with Regulation SHO, the sale after delivery of a Put Notice
of such number of shares of Common Stock reasonably expected to be purchased under a Put Notice shall not be deemed a Short Sale. The
Investor shall, until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company in accordance
with the terms of this Agreement, maintain the confidentiality of the existence and terms of this transaction and the information included
in the Transaction Documents. The Investor agrees not to disclose any Confidential Information of the Company to any third party, except
for attorneys, accountants, advisors who have a need to know such Confidential Information and are bound by confidentiality, and shall
not use any Confidential Information for any purpose other than in connection with, or in furtherance of, the transactions contemplated
hereby. The Investor acknowledges that the Confidential Information of the Company shall remain the property of the Company and agrees
that it shall take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the Company.
ARTICLE VI
COVENANTS OF THE
COMPANY
Section 6.1 LISTING
OF COMMON STOCK. The Company shall promptly secure the listing of all of the Put Shares and Commitment Shares to be issued to the
Investor hereunder on the Principal Market (subject to official notice of issuance) and shall use commercially reasonable efforts to maintain,
so long as the Common Stock shall be so listed, the listing of all such Put Shares and Commitment Shares from time to time issuable hereunder.
The Company shall use its commercially reasonable efforts to continue the listing and trading of the Common Stock on the Principal Market
(including, without limitation, maintaining sufficient net tangible assets) and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of FINRA and the Principal Market. The Company shall not take any action that would
reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall promptly,
and in no event later than the following Trading Day, provide to the Investor copies of any notices it receives from any Person regarding
the continued eligibility of the Common Stock for listing on the Principal Market. The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section 6.1. The Company shall take all action necessary to ensure that the Common Stock
can be transferred electronically as DWAC Shares. If the Company receives a final non-appealable delisting notice from the Principal Market
or if the Common Stock fails to be listed on an Eligible Market, then the Investor may terminate its obligations under this Agreement
by written notice to the Company and may deem any outstanding Put Notice as withdrawn.
Section 6.2 OTHER EQUITY
LINES. So long as this Agreement remains in effect, the Company covenants and agrees that it will not enter into any other equity
line of credit agreement with any other party, without the Investor’s prior written consent, which consent may be granted or withheld
in the Investor’s sole and absolute discretion.
Section 6.3 FILING OF
CURRENT REPORT AND REGISTRATION STATEMENT. The Company agrees that it shall file a Current Report on Form 8-K, including certain
Transaction Documents as exhibits thereto, with the SEC within the time required by the Exchange Act, relating to the transactions
contemplated by, and describing the material terms and conditions of, such Transaction Documents (the “Current
Report”). The Company shall permit the Investor to review and comment upon the pre-filing draft version of the Current
Report at least two (2) Trading Days prior to its filing with the SEC, and the Company shall give reasonable consideration to all
such comments. The Investor shall use its reasonable best efforts to comment upon the pre-filing draft version of the Current Report
within one (1) Trading Day from the date the Investor receives it from the Company. The Company shall also file with the SEC a new
registration statement on Form S-1 (the “Registration Statement”), the timing and terms of which shall be
governed by Section 2 of the Registration Rights Agreement.
Section 6.4 COMMITMENT
FEE; ISSUANCE OF COMMITMENT SHARES; FAILURE TO INCLUDE IN REGISTRATION STATEMENT; COMMITMENT SHARE REFERENCE PRICE DEFAULT; COMMITMENT
SHARE RETURN.
(a) In
consideration for the Investor’s execution and delivery of, and performance under this Agreement, on the Execution Date, the Company
shall pay to the Investor $450,000 (the “Commitment Fee”), which shall be in the form of shares of Common Stock. All
shares of Common Stock issued by the Company to the Investor under this Section 6.4 shall be referred to as “Commitment
Shares”. The Commitment Shares shall be issued on the Execution Date and the number of Commitment Shares to be issued to the
Investor (the “Original Commitment Share Amount”) shall be equal to the quotient obtained by dividing (a) $450,000
by (b) the closing price of the Common Stock, using the closing price provided on the Principal Market, on the Trading Day immediately
preceding the Execution Date (the “Commitment Share Reference Price”). For the avoidance of doubt, the Commitment Fee
and Commitment Shares shall be fully earned as of the Execution Date, and the issuance of the Commitment Shares is not contingent upon
any other event or condition, including, without limitation, the effectiveness of the Registration Statement or the Company’s submission
of a Put Notice to the Investor and irrespective of any termination of this Agreement.
(b) The
Company shall include on any registration statement filed with the SEC, all Commitment Shares, provided that, in addition to all other
remedies at law or in equity or otherwise under this Agreement, failure to do so will result in liquidated damages of $50,000.00, being
immediately due and payable to the Investor at its election in the form of cash payment and the Investor may terminate its obligations
under this Agreement by written notice to the Company.
(c) If
the closing price of the Common Stock provided on the Principal Market on the Trading Day the Registration Statement is declared effective
is less than the Commitment Share Reference Price (a “Commitment Share Price Default”), the Company shall issue to
the Investor additional shares of Common Stock as Commitment Shares. The amount of shares of stock which shall be issued as a result of
such Commitment Share Price Default, shall be equal to the quotient obtained by dividing (a) $450,000, by (b) the greater
of (x) $1.00, and (y) the closing price of the Common Stock provided on the Principal Market on the Trading Day the Registration Statement
is declared effective, minus the Original Commitment Share Amount.
(d) If
the closing price of the Common Stock provided on the Principal Market on the Trading Day the Registration Statement is declared effective
is in excess of the Commitment Share Reference Price, the Investor shall promptly return to the Company an amount of Commitment Shares
equal to the Original Commitment Share Amount minus the quotient obtained by dividing (a) $450,000, by (b) the closing
price of the Common Stock provided on the Principal Market on the Trading Day the Registration Statement is declared effective.
(e) If
the Initial Registration Statement (as defined in the Registration Rights Agreement) is not declared effective by February 1, 2025, and
as result the Company pays to the Investor $500,000 in accordance with Section 2(f) of the Registration Rights Agreement, upon receipt
by the Investor of such $500,000 the Investor shall promptly return the Commitment Shares to the Company, together with a stock power
executed in blank, and Investor shall no longer be the record or beneficial owner of the Commitment Shares; provided, however, if counsel
to the Company and the Investor reasonably determine that the Registration Statement will be declared effective on or before February
12, 2025, either party shall have the option to extend the date for the exchange of the Commitment Shares for cash as provided above until
February 12, 2025. If the Registration Statement is declared effective by such extended date, the Company shall no longer have any obligation
to pay to the Investor $500,000 and the Investor shall no longer have any obligation to return the Commitment Shares (other than pursuant
to paragraph (d) above).
Section 6.5 DUE
DILIGENCE; CONFIDENTIALITY; NON-PUBLIC INFORMATION. The Investor shall have the right, from time to time as the Investor may reasonably
deem appropriate, to perform reasonable due diligence on the Company during normal business hours. The Company, each Subsidiary and their
respective officers and employees shall provide information and reasonably cooperate with the Investor in connection with any reasonable
request by the Investor related to the Investor’s due diligence of the Company. The Company agrees not to disclose any Confidential
Information of the Investor to any third party, except for attorneys, accountants, advisors who have a need to know such Confidential
Information and are bound by confidentiality, and shall not use any Confidential Information for any purpose other than in connection
with, or in furtherance of, the transactions contemplated hereby. The Company acknowledges that the Confidential Information of the Investor
shall remain the property of the Investor and agrees that it shall take all reasonable measures to protect the secrecy of any Confidential
Information disclosed by the Investor. The Company confirms that neither it nor any other Person acting on its behalf shall provide the
Investor or its agents or counsel with any information that constitutes or might constitute material, non-public information, unless a
simultaneous public announcement thereof is made by the Company in the manner contemplated by Regulation FD. In the event of a breach
of the foregoing covenant by the Company or any Person acting on its behalf (as determined in the reasonable good faith judgment of the
Investor), in addition to any other remedy provided herein or in the other Transaction Documents, the Investor, upon the advice of its
counsel, shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such
material, non-public information without the prior approval by the Company; provided the Investor shall have first provided notice to
the Company that it believes it has received information that constitutes material, non-public information, and the Company shall have
had at least twenty-four (24) hours to publicly disclose such material, non-public information prior to any such disclosure by the Investor,
and the Company shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall
not have any liability to the Company, any Subsidiary, or any of their respective directors, officers, employees, stockholders, affiliates
or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing covenants
in effecting transactions in securities of the Company.
Section 6.6 PURCHASE
RECORDS. The Company shall maintain records showing the Available Amount at any given time and the date, Investment Amount and Put
Shares for each Put, contained in the applicable Put Notice.
Section 6.7 TAXES.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery of any
shares of Common Stock to the Investor made under this Agreement.
Section 6.8 USE
OF PROCEEDS. The Company will use the net proceeds from the offering of Put Shares hereunder for the purposes described in the Registration
Statement.
Section 6.9 OTHER
TRANSACTIONS. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction
in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the Company to perform
its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver the Put Shares
and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
Section 6.10
INTEGRATION. In any case subject to the terms of the Registration Rights Agreement, from and after the Execution Date, neither
the Company, nor or any of its Subsidiaries or Affiliates will, and the Company shall use its reasonable efforts to ensure that no Person
acting on their behalf will, directly or indirectly, make any offers or sales of any security or solicit any offers to buy any security,
under circumstances that would require registration of the offer and sale of any of the Securities under the Securities Act.
Section 6.11 TRANSACTION
DOCUMENTS. On the Execution Date, the Company shall deliver to the Investor executed copies of all of the Transaction Documents.
Section 6.12 STANDSTILL.
Unless waived by the Investor, notwithstanding any other provisions set forth in the Transaction Documents, the Company hereby covenants
and agrees not to issue any shares of Common Stock or other securities (including debt securities) convertible or exercisable into shares
of Common Stock or enter into agreement to sell such securities, during each period beginning (i) upon the submission of any Put Notice
that has been accepted in accordance with the terms hereof and (ii) ending upon the later of (a) the Trading Day following the expiration
of the applicable Valuation Period relating to such Put Notice, and (ii) close of the Trading Day on which the aggregate trading volume
of the Common Stock over the Trading Days since issuance of such Put Notice shall have exceeded Five Hundred percent (500%) of the number
of Put Shares sold pursuant to such Put Notice, provided, that if the aggregate trading volume of the Common Stock shall not have exceeded
Five Hundred percent (500%) of the number of Put Shares sold pursuant to such Put Notice by the thirtieth (30th) calendar day
following the issuance of such Put Notice, then the applicable period shall end on the close of the Trading Day on the thirtieth (30th)
calendar day following the issuance of such Put Notice.
ARTICLE VII
CONDITIONS TO DELIVERY OF PUT NOTICES AND CONDITIONS TO
CLOSING
Section 7.1 CONDITIONS
PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The obligation of the Investor hereunder to purchase Put Shares is
subject to the satisfaction of each of the following conditions:
(a) REGISTRATION STATEMENT.
The Registration Statement, and any amendment or supplement thereto, shall be and remain effective for the resale by the Investor of
the Put Shares and the Commitment Shares and (i) neither the Company nor the Investor shall have received notice that the SEC has issued
or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened to do so and (ii) no other
suspension of the use of, or withdrawal of the effectiveness of, such Registration Statement or related prospectus shall exist. The Company
shall have prepared and filed with the SEC a final and complete prospectus (the preliminary form of which shall be included in the Registration
Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current and available
for the resale by the Investor of all of the Securities covered thereby.
(b) ACCURACY OF THE COMPANY’S
REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true and correct in all material respects
as of the Execution Date, each date a Put Notice is submitted, and as of the date of each Closing (except for representations and warranties
under the first sentence of Section 4.3, which are specifically made as of the Execution Date and shall be true and correct in
all respects as of the Execution Date).
(c) PERFORMANCE BY THE COMPANY.
The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Company.
(d) NO INJUNCTION. No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by
any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects any of the
transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced that may have the effect of prohibiting
or materially adversely affecting any of the transactions contemplated by the Transaction Documents.
(e) ADVERSE CHANGES.
Since the date of filing of the Company’s most recent SEC Document, no event that had or is reasonably likely to have a Material
Adverse Effect has occurred.
(f) NO SUSPENSION OF TRADING
IN OR DELISTING OF THE COMMON STOCK. Trading of the Common Stock shall not have been suspended by the SEC, the Principal Market or
FINRA, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or quotation on and shall not have
been delisted from the Principal Market. In the event of a suspension, delisting, or halting for period of more than two hours, of the
trading of the Common Stock, as contemplated by this Section 7.1(f), the Investor shall have the right to return to the Company
any remaining amount of Put Shares associated with such Put, and the Purchase Price with respect to such Put shall be reduced accordingly.
(g) BENEFICIAL OWNERSHIP
LIMITATION. As of the date of the Closing for such issuance and sale, the number of Put Shares to be purchased by the Investor shall
not exceed the number of such shares that, when aggregated with all other shares of Common Stock then beneficially owned or deemed beneficially
owned by the Investor and its Affiliates, would result in the Investor and its Affiliates owning more than the Beneficial Ownership Limitation
(as defined below), as determined in accordance with Section 13(d) of the Exchange Act and the regulations promulgated thereunder. For
purposes of this Section 7.1(g), in the event that the amount of shares of Common Stock outstanding, as determined in accordance
with Section 13(d) of the Exchange Act and the regulations promulgated thereunder, is greater on a Closing Date than on the date upon
which the Put Notice associated with such Closing Date is given, the amount of shares of Common Stock outstanding on such Closing Date
shall govern for purposes of determining whether the Investor, when aggregating all purchases of shares of Common Stock made pursuant
to this Agreement, would own more than the Beneficial Ownership Limitation following such Closing Date. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock issuable pursuant to a Put Notice. The Investor, upon notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 7.1(g), 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 Common Stock issuable pursuant
to a Put Notice and the provisions of this Section 7.1(g) 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.
(h) NO KNOWLEDGE. The
Company shall have no knowledge of any event more likely than not to have the effect of causing the Registration Statement to be suspended
or otherwise ineffective (which event is more likely than not to occur within the fifteen (15) Trading Days following the Trading Day
on which such Put Notice is deemed delivered). The Company shall have no knowledge of any untrue statement (or alleged untrue statement)
of a material fact or omission (or alleged omission) of a 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, in the Registration Statement, any effective registration
statement filed pursuant to the Registration Rights Agreement or any post-effective amendment or prospectus which is a part of the foregoing,
unless the Company has filed an amendment to the Registration Statement or made a filing pursuant to Section 13(a) or 15(d) of the Exchange
Act with the SEC.
(i) NO VIOLATION OF SHAREHOLDER
APPROVAL REQUIREMENT. The issuance of the Put Shares shall not violate the shareholder approval requirements of the Principal Market.
(j) OFFICER’S CERTIFICATE.
On the date of delivery of each Put Notice, the Investor shall have received the Closing Certificate executed by an executive officer
of the Company and to the effect that all the conditions to such Closing shall have been satisfied as of the date of each such certificate.
(k) DWAC ELIGIBLE. The
Common Stock must be DWAC Eligible and not subject to a “DTC chill.”
(l) SEC DOCUMENTS. All
reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the Company with
the SEC pursuant to the reporting requirements of the Exchange Act (other than Forms 8-K) shall have been filed with the SEC within the
applicable time periods prescribed for such filings under the Exchange Act.
(m) TRANSFER AGENT INSTRUCTION
LETTER. The Transfer Agent Instruction Letter shall have been executed and delivered by the Company to the Transfer Agent and acknowledged
and agreed to in writing by the Transfer Agent, and the Company shall have no knowledge of any fact or circumstance that would prevent
the Transfer Agent from complying with the terms of the Transfer Agent Instruction Letter.
(n) BROKER APPROVAL.
The Put Shares and Commitment Shares shall have been approved by the Investor’s prime broker or designated clearing firm for deposit
to its account with the Depository Trust Company system; provided that the Investor shall have used commercially reasonable efforts to
satisfy any requirements of such prime broker or designated clearing firm in respect of such approval.
(o) NO VIOLATION. No
statute, regulation, order, guidance, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or
endorsed by any federal, state, local or foreign court or governmental authority of competent jurisdiction, including, without limitation,
the SEC, which prohibits the consummation of or which would materially modify or delay any of the transactions contemplated by the Transaction
Documents.
(p) LEGAL OPINION. The
Company shall cause to be delivered to the Investor a written opinion or opinions of counsel reasonably satisfactory to the Investor,
in form and substance reasonably satisfactory to the Investor and its counsel, relating to the availability and effectiveness of the
Registration Statement, as supplemented by any prospectus supplement or amendment thereto, and regarding the Company’s compliance
with the laws of the State of Delaware and the federal securities laws of the United States in the issuance, sale and registration of
the Put Shares and Commitment Shares and entrance into the transaction documents.
(q) NO VARIABLE-RATE TRANSACTIONS.
Without the prior written consent of the Investor, until the earlier of (i) the date the Investor has purchased the Maximum Commitment
Amount in shares of Common Stock hereunder, (ii) the twenty-four (24) month anniversary of the date of this Agreement or (iii) the date
that this Agreement terminates pursuant to the terms herein, the Company shall not have entered into any Variable Rate Transaction other
than in connection with an exempt issuance. For purposes of this Agreement, “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any equity or debt securities that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion price, exercise
price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at
any time after the initial issuance of such equity or debt securities, or (B) with a conversion, exercise or exchange price that is subject
to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (including, without
limitation, any “full ratchet” or “weighted average” anti-dilution provisions, but not including any standard
anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), (ii)
issues or sells any equity or debt securities, including without limitation, shares of Common Stock or Common Stock Equivalents, either
(A) at a price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the
Common Stock (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction), or (B) that are subject to or contain any put, call, redemption, buy-back, price-reset or other similar provision
or mechanism (including, without limitation, a “Black-Scholes” put or call right, other than in connection with a “fundamental
transaction”) that provides for the issuance of additional equity securities of the Company or the payment of cash by the Company,
or (iii) enters into any agreement, including, but not limited to, an “equity line of credit” (other than with the Investor)
or other continuous offering or similar offering of shares of Common Stock or Common Stock Equivalents, whereby the Company may sell
shares of Common Stock or Common Stock Equivalents at a future determined price.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, options, restricted stock units or other equity incentive awards
to employees, officers, consultants, directors or vendors of the Company pursuant to any equity incentive plan duly adopted for such purpose,
by the Board of Directors of the Company or a majority of the members of a committee of directors established for such purpose, (b) any
shares of Common Stock or Commitment Shares issued to the Investor pursuant to this Agreement, (c) shares of Common Stock, Common Stock
Equivalents or other securities issued to the Investor pursuant to any other existing or future contract, agreement or arrangement between
the Company and the Investor, (d) shares of Common Stock, Common Stock Equivalents or other securities upon the exercise, exchange or
conversion of any shares of Common Stock, Common Stock Equivalents or other securities held by the Investor at any time, (e) any securities
issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date hereof, provided
that such securities or Common Stock Equivalents referred to in this clause (e) have not been amended since the date hereof to increase
the number of such securities or shares of Common Stock underlying such securities or to decrease the exercise price, exchange price or
conversion price of such securities, (f) Common Stock Equivalents that are convertible into, exchangeable or exercisable for, or include
the right to receive shares of Common Stock at a conversion price, exercise price, exchange rate or other price (which may be below the
then current market price of the shares of Common Stock) that is fixed at the time of initial issuance of such Common Stock Equivalents
(subject only to standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock
split or other similar transaction), which fixed conversion price, exercise price, exchange rate or other price shall not at any time
after the initial issuance of such Common Stock Equivalents be based upon or varying with the trading prices of or quotations for the
shares of Common Stock or subject to being reset at some future date and (g) securities issued pursuant to acquisitions, divestitures,
licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors of the Company or a majority of the
members of a committee of directors established for such purpose, which acquisitions, divestitures, licenses, partnerships, collaborations
or strategic transactions can have a Variable Rate Transaction component, provided that any such issuance shall only be to a Person (or
to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an asset in a business synergistic
with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall
not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities. For purposes of this Agreement, an “at-the-market” offering with a bona-fide
registered broker dealer shall not be deemed a Variable Rate Transaction.
(r) NO NON-PUBLIC INFORMATION.
Neither the Investor nor any of its agents or counsel shall be in possession of any information that constitutes or might constitute
material, non-public information with respect to the Company.
(s) AT-THE- MARKET OFFRING.
The Company shall not then be conducting an “at-the-market” offering during any period beginning on the Put Date relating
to such Put Shares and ending on the related Closing Date.
(t) COMMITMENT SHARES ISSUED
AS DWAC SHARES. Following the effectiveness of the Registration Statement any Common Stock issuable to the Investor pursuant to Section
6.4 shall have been credited by the Company’s transfer agent to the Investor’s or its designee’s account at DTC as
DWAC Shares.
ARTICLE VIII
LEGENDS
Section 8.1 NO
RESTRICTIVE STOCK LEGEND. No restrictive stock legend shall be placed on the share certificates representing the Put Shares.
Section 8.2 INVESTOR’S
COMPLIANCE. Nothing in this Article VIII shall affect in any way the Investor’s obligations hereunder to comply
with all applicable securities laws upon the sale of the Common Stock.
ARTICLE IX
NOTICES; INDEMNIFICATION
Section 9.1 NOTICES.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing, except
for Put Notices which shall be delivered via email in accordance with Section 2.2 and, unless otherwise specified herein, shall
be (a) personally served, (b) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (c) delivered
by a nationally recognized overnight delivery service with charges prepaid, or (d) transmitted by hand delivery, telegram, or e-mail as
a PDF, addressed as set forth below or to such other address as such party shall have specified most recently by written notice given
in accordance herewith. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (i) upon
hand delivery or delivery by e-mail at the address designated below (if delivered on a business day during normal business hours where
such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (ii) on the first business day following the date of mailing by a nationally recognized
overnight delivery service or on the fifth business day after deposited in the mail, in each case, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
If to
the Company:
OS Therapies Incorporated
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland 21638
Attention:
E-mail:
Phone:
With a copy (which shall not constitute notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15th Floor
New York, NY 10019
Attention: Spencer G. Feldman
E-mail: SFeldman@olshanlaw.com
If to the Investor:
Square Gate Capital Master Fund, LLC - Series 3
[___]
with a copy to (that shall not constitute notice)
Lucosky
Brookman LLP
101 Wood Avenue South
Woodbridge, NJ 08830
E-mail: sbrookman@lucbro.com
Attention: Seth Brookman
Either party hereto may from time to time change its address
or e-mail for notices under this Section 9.1 by giving at least ten (10) days’ prior written notice of such changed address
to the other party hereto.
Section 9.2 INDEMNIFICATION.
The Company (an “Indemnifying Party”) agrees to indemnify and hold harmless the Investor along with its officers, directors,
employees, and authorized agents and representatives, and each Person or entity, if any, who controls such party within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act or the rules and regulations thereunder (an “Indemnified Party”)
from and against any and all Damages, joint or several, and any and all actions in respect thereof to which the Indemnified Party becomes
subject to, resulting from, arising out of or relating to (i) any misrepresentation, breach of warranty or nonfulfillment of or failure
to perform any covenant or agreement on the part of the Indemnifying Party contained in this Agreement, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any registration statement pursuant to the Registration Rights
Agreement or any post-effective amendment thereof or supplement thereto, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or contained in the final prospectus (as amended or supplemented,
if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any
material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were
made, not misleading, or (iv) any material violation or alleged material violation by the Company of the Securities Act, the Exchange
Act, any state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law, as such
Damages are incurred, except to the extent such Damages result primarily from the Indemnified Party’s failure to perform any covenant
or agreement contained in this Agreement or the Indemnified Party’s negligence, recklessness, fraud, willful misconduct or bad faith
in performing its obligations under this Agreement; provided, however, that the foregoing indemnity agreement shall not
apply to any Damages of an Indemnified Party to the extent, but only to the extent, (a) arising out of or based upon any untrue statement
or alleged untrue statement or omission or alleged omission made by an Indemnifying Party in reliance upon and in conformity with written
information furnished to the Indemnifying Party by the Indemnified Party expressly for use in the Registration Statement, or any post-effective
amendment thereof or supplement thereto, or (b) resulting from the fraud, gross negligence or willful misconduct of the Indemnified Party
(as determined by a final non-appealable judgment of court having jurisdiction over such matter).
Section 9.3 METHOD
OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party under Section 9.2 shall be asserted
and resolved as follows:
(a) In
the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted against
or sought to be collected from such Indemnified Party by a Person other than a party hereto or an Affiliate thereof (a “Third
Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is
being asserted under any provision of Section 9.2 against an Indemnifying Party, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable
promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified
Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by
such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the period
ending forty-five (45) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined
below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability
to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense, to defend
the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party
notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect
to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have the right to defend, with counsel
reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion
or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party in the case of any
settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages
as to which the Indemnified Party shall not be indemnified in full pursuant to Section 9.2). The Indemnifying Party shall have
full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery
of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action
that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further,
that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide
reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying
Party pursuant to this clause (i), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and
expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may takeover the control of the defense
or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.2 with respect
to such Third Party Claim.
(ii) If the Indemnifying Party
fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant
to this Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle
the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the Indemnified
Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate
proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled
at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld).
The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided,
however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party,
provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party
is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified Party
within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified
Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided
in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying
Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled
by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with respect
to such participation.
(iii) If the Indemnifying Party
notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified Party with respect
to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying
Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party Claim, the amount
of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under Section 9.2
and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability or the amount of its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified
Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is
not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action
as it deems appropriate.
(b) In the event any Indemnified
Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve a Third Party Claim, the Indemnified
Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying the nature of and basis for such
claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim
(an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party
to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that the Indemnifying Party demonstrates
that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the
claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period
whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity Notice, the amount of Damages
specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.2 and the
Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed
its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed
in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) days
after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(c) The
Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.
(d) The
indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified Party against
the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
ARTICLE X
MISCELLANEOUS
Section 10.1 GOVERNING
LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the
principles of conflicts of law (whether of the State of New York or any other jurisdiction).
Section 10.2 ARBITRATION.
Any disputes, claims, or controversies arising out of or relating to the Transaction Documents, or the transactions, contemplated thereby,
or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability
of this Agreement to arbitrate, shall be referred to and resolved solely and exclusively by binding arbitration to be conducted before
the Judicial Arbitration and Mediation Service (“JAMS”), or its successor pursuant the expedited procedures set forth
in the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”), including Rules 16.1 and 16.2 of those Rules.
The arbitration shall be held in New York, New York, before a tribunal consisting of three (3) arbitrators each of whom will be selected
in accordance with the “strike and rank” methodology set forth in Rule 15. Either party to this Agreement may, without waiving
any remedy under this Agreement, seek from any federal or state court sitting in the Southern District of New York any interim or provisional
relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal. The costs
and expenses of such arbitration shall be paid by and be the sole responsibility of the Company, including but not limited to the Investor’s
attorneys’ fees and each arbitrator’s fees. The arbitrators’ decision must set forth a reasoned basis for any award
of damages or finding of liability. The arbitrators’ decision and award will be made and delivered as soon as reasonably possibly
and in any case within sixty (60) days’ following the conclusion of the arbitration hearing and shall be final and binding on the
parties and may be entered by any court having jurisdiction thereof.
Section 10.3 JURY
TRIAL WAIVER. THE COMPANY AND THE INVESTOR HEREBY WAIVE A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTION DOCUMENTS.
Section 10.4
ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Company and the Investor and their respective
successors. Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned by either party to any other
Person.
Section 10.5
NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company and the Investor and their respective successors,
and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as set forth in Article IX.
Section 10.6 TERMINATION.
At any time after the effectiveness of the Registration Statement, the Company shall have the option to terminate this Agreement for any
reason or for no reason by delivering written notice (a “Company Termination Notice”) to the Investor electing to terminate
this Agreement without any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The
Company Termination Notice shall not be effective until one business day after it has been received by the Investor, provided that this
Agreement cannot be terminated (i) while there is an outstanding Put Notice, the shares of Common Stock under which have yet to be issued
and (ii) the Company has not paid all amounts owed to the Investor pursuant to this Agreement. In addition, this Agreement shall automatically
terminate on the earlier of (i) the end of the Commitment Period; (ii) the date that the Company sells and the Investor purchases the
Maximum Commitment Amount; or (iii) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary
case or any Person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all
of its property or the Company makes a general assignment for the benefit of its creditors. If the Company receives a final delisting
notice from the Principal Market or if the Common Stock fails to be listed on an Eligible Market, then the Investor may terminate its
obligations under this Agreement by written notice to the Company and may deem any outstanding Put Notice as withdrawn. Notwithstanding
the foregoing, in the event of termination of this Agreement, the provisions of Articles III, IV, V, VI, IX and the agreements
and covenants of the Company and the Investor set forth in this Article X shall survive the termination of this Agreement for the
maximum length of time allowed under applicable law.
Section 10.7
ENTIRE AGREEMENT. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding
of the Company and the Investor with respect to the matters covered herein and therein 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.
Section 10.8
FEES AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing 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, except for the non-refundable deposit
of $35,000 which the Company shall have paid to the Investor prior to the Execution Date in connection with the execution of the Term
Sheet entered into between the Company and Square Gate Capital, LLC to be allocated towards the Investor’s due diligence and legal
costs. For the avoidance of doubt as provided herein, the Company shall pay all Transfer Agent fees, brokers fees, stamp taxes and other
taxes and duties levied in connection with the delivery of any Securities to the Investor.
Section 10.9
COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which may be executed by less than all of the parties
and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and
all of which together shall constitute one and the same instrument. This Agreement may be delivered to the other parties hereto by e-mail
of a copy of this Agreement bearing the signature of the parties so delivering this Agreement.
Section 10.10
SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to
be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that such severability
shall be ineffective if it materially changes the economic benefit of this Agreement to any party.
Section 10.11
FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order
to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
Section 10.12
NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.
Section 10.13
EQUITABLE RELIEF. Each party acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the other
by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, each party acknowledges that the remedy at law
for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the
such party of the provisions of this Agreement, that the other party shall be entitled, in addition to all other available remedies at
law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing
any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss
and without any bond or other security being required.
Section 10.14 TITLE
AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
Section 10.15 AMENDMENTS;
WAIVERS. No provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Trading Day
immediately preceding the initial filing of the Registration Statement with the SEC. Subject to the immediately preceding sentence, (i)
no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto and (ii) no provision of
this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought.
No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege
Section 10.16 PUBLICITY.
The Company and the Investor shall consult with each other in issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such public statement, other
than as required by law, without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required by law, in which such case the disclosing party shall provide
the other party with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly disclose the
name of the Investor without the prior written consent of the Investor, except to the extent required by law. The Investor acknowledges
that this Agreement and all or part of the Transaction Documents may be deemed to be “material contracts,” as that term is
defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file such documents as exhibits to reports
or registration statements filed under the Securities Act or the Exchange Act. The Investor further agrees that the status of such documents
and materials as material contracts shall be determined solely by the Company, in consultation with its counsel.
** Signature Page Follows **
IN WITNESS WHEREOF, the parties have caused
this Agreement to be duly executed by their respective officers thereunto duly authorized as of the Execution Date.
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OS THERAPIES INCORPORATED |
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By: |
/s/ Paul Romness |
|
Name: |
Paul Romness |
|
Title: |
CEO |
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SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 3 |
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|
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By: |
/s/ Christopher Perugini |
|
Name: |
Christopher Perugini |
|
Title: |
Managing Partner |
** Signature Page to Equity Purchase Agreement
**
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of October 31, 2024 (the “Execution Date”), is entered
into by and between OS Therapies Incorporated, a corporation incorporated in the State of Delaware (the “Company”),
and Square Gate Capital Master Fund, LLC – Series 3, a series of a limited liability company organized in the State of Delaware
(together with its permitted assigns, the “Buyer”). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in that certain Equity Purchase Agreement by and between the parties hereto, dated as of
the Execution Date (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”).
WHEREAS:
The Company
has agreed, upon the terms and subject to the conditions of the Purchase Agreement, to sell to the Buyer up to Fifteen Million Dollars
($15,000,000.00) of Put Shares, and to induce the Buyer to enter into the Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute
(collectively, the “Securities Act”), and applicable state securities laws.
NOW, THEREFORE,
in consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement,
the following terms shall have the following meanings:
a.
“Investor” means the Buyer, any transferee or assignee thereof to whom the Buyer assigns its rights under this
Agreement in accordance with Section 9 and who agrees to become bound by the provisions of this Agreement, and any transferee or
assignee thereof to whom a transferee or assignee assigns its rights under this Agreement in accordance with Section 9 and who
agrees to become bound by the provisions of this Agreement.
b. “Person”
means any individual or entity including but not limited to any corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental
agency.
c. “Register,”
“Registered,” and “Registration” refer to a registration effected by preparing and filing one
or more registration statements of the Company in compliance with the Securities Act and/or pursuant to Rule 415 under the
Securities Act or any successor rule providing for the offering of securities on a continuous basis (“Rule 415”),
and the declaration or ordering of effectiveness of such registration statement(s) by the United States Securities and Exchange
Commission (the “SEC”).
d. “Registrable Securities” means all of the (i) Commitment Shares, (ii) Put Shares which have been, or which may,
from time to time be issued, including without limitation all of the shares of Common Stock which have been issued or will be issued to
the Investor under the Purchase Agreement (without regard to any limitation or restriction on purchases), and (iii)
any and all shares of capital stock issued or issuable with respect to the Put Shares and Commitment Shares
as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitation
on purchases under the Purchase Agreement.
e.
“Registration Statement” means one or more registration statements of the Company on Form S-1 covering the resale
of the Registrable Securities including the Initial Registration Statement and any New Registration Statement or Other Registration Statement
(each as defined herein).
2. REGISTRATION.
a.
Mandatory Registration. The Company shall, as soon as possible, but in no event later than by November 15, 2024, file with
the SEC an initial Registration Statement on Form S-1 covering the maximum number of Registrable Securities as shall be permitted to be
included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable
Securities by the Investor, including but not limited to under Rule 415 under the Securities Act at then prevailing market prices (and
not fixed prices) (the “Initial Registration Statement”). The Initial Registration Statement shall register only Registrable
Securities. The Company shall use its best efforts to have the Initial Registration Statement and any amendment thereto declared effective
by the SEC at the earliest possible date, but in no event later than December 15, 2024.
b. Rule
424 Prospectus. In addition to the Initial Registration Statement, the Company shall, as required by applicable securities
regulations, from time to time file with the SEC, pursuant to Rule 424 promulgated under the Securities Act, such prospectuses and
prospectus supplements, if any, to be used in connection with sales of the Registrable Securities under each Registration Statement.
The Investor and its counsel shall have a reasonable opportunity to review and comment upon such prospectuses prior to its filing
with the SEC, and the Company shall give due consideration to all such comments. The Investor shall use its reasonable best efforts
to comment upon any prospectus within two (2) business days from the date the Investor receives the pre-filing version of such
prospectus.
c. Sufficient
Number of Shares Registered. In the event the number of shares available under the Initial Registration Statement is
insufficient to cover all of the Registrable Securities, the Company shall amend the Initial Registration Statement or file a new
Registration Statement (a “New Registration Statement”), so as to cover all of such Registrable Securities
(subject to the limitations set forth in Section 2(e)) as soon as practicable, subject to any limits that may be imposed by
the SEC pursuant to Rule 415 under the Securities Act, including any position of the staff of the SEC (the
“Staff”) with respect to the date on which the Staff will permit such additional Registration Statement(s) to be
filed with the SEC and the rules and regulations of the SEC and any Principal Market (“Regulatory Restrictions”).
The Company shall use its commercially reasonable efforts to cause such amendment and/or New Registration Statement to become
effective as soon as practicable following the filing thereof. In the event that any of the Registrable Securities are not included
in the Initial Registration Statement, or have not been included in any New Registration Statement, and the Company files any other
registration statement under the Securities Act (other than on Form S-4, Form S-8, or with respect to other employee related plans
or rights offerings) (an “Other Registration Statement”), then the Company shall, to the extent permitted under
the Regulatory Restrictions, include in such Other Registration Statement first all of such Registrable Securities that have not
been previously Registered, and second any other securities the Company wishes to include in such Other Registration Statement. The
Company agrees that, subject to the exceptions and limitations set forth in the immediately preceding sentence, it shall not file
any such Other Registration Statement unless all of the Registrable Securities have been included in such Other Registration
Statement or otherwise have been Registered for resale as described above.
d. Effectiveness.
The Investor and its counsel shall have a reasonable opportunity to review and comment upon any Registration Statement and any
amendment or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company
shall give due consideration to all reasonable comments. The Investor shall furnish all information reasonably requested by the
Company for inclusion therein. The Company shall use commercially reasonable efforts to keep all Registration Statements effective,
including but not limited to pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investor
of all of the Registrable Securities covered thereby at all times until the earlier of (i) the date as of which the Investor may
sell all of the Registrable Securities without any restrictions (including any restrictions under Rule 144 promulgated under the
Securities Act) and (ii) the date on which the Investor shall have sold all the Registrable Securities covered thereby and no Put
Shares remain issuable under the Purchase Agreement (the “Registration Period”). In the event that any
Registration Statement filed hereunder is no longer effective and Rule 144 is available for sales of the Registrable Securities, the
Company shall provide an opinion upon request of the Investor that the Investor may sell any such Registrable Securities held by the
Investor pursuant to Rule 144 with all costs related to such opinion to be borne by the Company. Each Registration Statement
(including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading.
e. Offering.
If the Staff or the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as
constituting an offering of securities that does not permit such Registration Statement to become or remain effective and be used
for resales by the Investor under Rule 415 at then-prevailing market prices (and not fixed prices) by comment letter or otherwise,
or if after the filing of the Initial Registration Statement with the SEC pursuant to Section 2(a), the Company is otherwise
required by the Staff or the SEC to reduce the number of Registrable Securities included in such initial Registration Statement,
then the Company shall reduce the number of Registrable Securities to be included in such Initial Registration Statement (after
having consulted the Investor and its legal counsel as to the specific Registrable Securities to be removed therefrom) until such
time as the Staff and the SEC shall so permit such Registration Statement to become effective and be used as aforesaid. In the event
of any reduction in Registrable Securities pursuant to this paragraph, the Company shall file one or more New Registration
Statements in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus contained therein is available for use by the Investor.
Notwithstanding any provision herein or in the Purchase Agreement to the contrary, the Company’s obligations to register
Registrable Securities (and any related conditions to the Investor’s obligations) shall be qualified as necessary to comport
with any requirement of the SEC or the Staff as addressed in this Section 2(e).
f. Liquidated
Damages for Effectiveness Failure. If the Initial Registration Statement registering for resale all of the Registrable
Securities is not declared effective by February 1, 2025, the Company shall immediately pay to the Buyer $500,000.00.
g. Liquidated
Damages for failure to File the Initial Registration Statement. If the Initial Registration Statement is not filed in accordance
with Section 2(a) above or if the Company files the Initial Registration Statement without affording the Investor the opportunity to
review (and, with respect to disclosure on the Investor, to comment) on the same as required by Section 3(b) herein, then, in
addition to any other rights the Investor may have hereunder or under applicable law, on the date of such failure and on each
monthly anniversary of each such failure (if the applicable failure shall not have been cured by such date) the Company shall pay to
the Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 0.0025 multiplied by the
Maximum Commitment Amount; provided, however, that the Company shall not be required to make any payments with respect to
Registrable Securities which may be freely tradable pursuant to Rule 144 or any other exemption from registration under the
Securities Act. The parties agree that the maximum aggregate liquidated damages payable to the Investor under this Section 2(g)
shall be 12% of the Maximum Commitment Amount. 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 12% per annum (or such lesser
maximum amount that is permitted to be paid by applicable law) to the Investor, 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.
3. RELATED OBLIGATIONS.
With respect
to a Registration Statement and whenever any Registrable Securities are to be Registered pursuant to Section 2, including on any
Other Registration Statement, the Company shall use its commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a.
The Company shall prepare and file with the SEC such amendments (including post-effective amendments on Form S-1) and supplements
to any Registration Statement and any Other Registration Statement and the prospectus used in connection with such Registration Statement
and Other Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be
necessary to keep the Registration Statement effective at all times during the Registration Period, and, during such period, comply with
the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration
Statement or applicable Other Registration Statement until such time as all of such Registrable Securities shall have been disposed of
in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement.
b. The
Company shall permit the Investor to review and comment upon each Registration Statement or any Other Registration Statement and all
amendments and supplements thereto at least two (2) business days prior to their filing with the SEC, and not file any document in a
form to which Investor reasonably objects. The Investor shall use its commercially reasonable efforts to comment upon the
Registration Statement or any Other Registration Statement and any amendments or supplements thereto within two (2) business days
from the date the Investor receives the final version thereof. The Company shall furnish to the Investor, without charge, and within
three (3) business days, any comments and/or any other correspondence from the SEC or the Staff to the Company or its
representatives relating to the Registration Statement or any Other Registration Statement. The Company shall respond to the SEC or
the Staff, as applicable, regarding the resolution of any such comments and/or correspondence as promptly as practicable and in any
event within two weeks upon receipt thereof.
c. Upon request of the Investor, the Company
shall furnish to the Investor, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration
Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference
and all exhibits, (ii) upon the effectiveness of any Registration Statement, a copy of the prospectus included in such Registration Statement
and all amendments and supplements thereto (or such other number of copies as the Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned by the Investor. For the avoidance of doubt, any filing available to
the Investor via the SEC’s live EDGAR system shall be deemed “furnished to the Investor” hereunder.
d. The
Company shall use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws in such jurisdictions in the United States as required by
applicable law, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements
to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during
the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section
3(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in
any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company
of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for
sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of
the initiation or threatening of any proceeding for such purpose.
e.
As promptly as practicable after becoming aware of such event or facts, the Company shall notify the Investor in writing of the
happening of any event or existence of such facts as a result of which the prospectus included in any Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a 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 promptly prepare a supplement
or amendment to such Registration Statement to correct such untrue statement or omission, and deliver a copy of such supplement or amendment
to the Investor (or such other number of copies as the Investor may reasonably request). The Company shall also promptly notify the Investor
in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement
or any post-effective amendment thereto has become effective (notification of such effectiveness shall be delivered to the Investor by
email or facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements
to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be appropriate.
f.
The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of any registration statement, or the suspension of the qualification of any Registrable Securities for sale in any jurisdiction and,
if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to
notify the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose. In addition, if the Company shall receive any comment letter from the SEC relating to any Registration
Statement under which Registrable Securities are Registered, the Company shall notify the Investor of the issuance of such order and use
its best efforts to address such comments in a manner satisfactory to the SEC.
g. The Company shall use its commercially reasonable efforts to (i) cause all the Registrable Securities to be listed on each securities
exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities
on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section.
h. The
Company shall cooperate with the Investor to facilitate the timely preparation and delivery of DWAC Shares representing the
Registrable Securities to be offered pursuant to any Registration Statement. “DWAC Shares” means shares of Common
Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without restriction on resale and (iii)
timely credited by the Company to the Investor’s or its designee’s specified DWAC account with The Depository Trust
Company (“DTC”) under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing
substantially the same function.
i.
The Company shall at all times maintain the services of its Transfer Agent and registrar with respect to its Common Stock.
j.
If reasonably requested by the Investor, the Company shall (i) immediately incorporate in a prospectus supplement or post-effective
amendment such information relating solely to the Investor as the Investor believes should be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities
being sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required
filings of such prospectus supplement or post-effective amendment as soon as practicable upon notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement.
k. The Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by any Registration Statement
to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition
of such Registrable Securities.
l.
Within one (1) business day after any Registration Statement which includes Registrable Securities is declared effective by the
SEC, or any prospectus supplement or post-effective amendment including Registrable Securities is filed with the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the Transfer Agent for such Registrable Securities (with copies
to the Investor) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit
A. Thereafter, if requested by the Investor at any time, the Company shall require its counsel to deliver to the Investor a written
confirmation whether or not (i) the effectiveness of such Registration Statement has lapsed at any time for any reason (including, without
limitation, the issuance of a stop order) (ii) any comment letter has been issued by the SEC and (iii) whether or not the Registration
Statement is current and available to the Investor for sale of all of the Registrable Securities.
m. The
Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to any Registration Statement.
4. OBLIGATIONS OF THE INVESTOR.
a.
The Company shall notify the Investor in writing of the information the Company reasonably requires from the Investor in connection
with any Registration Statement hereunder. The Investor shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required
to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the
Company may reasonably request. Notwithstanding the foregoing, the Registration Statement shall contain the “Selling Stockholder”
and “Plan of Distribution” sections, each in substantially the form provided to the Company by the Investor.
b.
The Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and
filing of any Registration Statement hereunder and responding to the comments and queries from the SEC in connection therewith
unless its counsel shall otherwise advise.
c.
The Investor agrees that, upon receipt of any notice from the Company of the happening of any event or existence of facts of the
kind described in Section 3(f) or the first sentence of Section 3(e), the Investor will immediately discontinue disposition
of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until withdrawal of a stop order
contemplated by Section 3(f) or the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(e). Notwithstanding anything to the contrary, the Company shall cause its Transfer Agent to promptly issue DWAC Shares
in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any
event of the kind described in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not yet
settled.
5. EXPENSES OF REGISTRATION.
All reasonable
expenses, other than sales or brokerage commissions, incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting
fees, and fees and disbursements of counsel for the Company (but not counsel for the Investor), shall be paid by the Company.
6. INDEMNIFICATION.
a.
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each
Person, if any, who controls or is under common control with the Investor, the members, the directors, officers, partners,
employees, agents, representatives of the Investor and each Person, if any, who is an “affiliate” of the Investor within
the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (each,
an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges,
costs, attorneys’ fees, amounts paid in settlement or expenses, joint or several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to which
any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration
Statement, any Other Registration Statement or any post-effective amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable
Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) in which Registrable Securities are offered or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements
therein were made, not misleading, (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act,
any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to a Registration Statement or any Other Registration Statement or (iv) any material
violation by the Company of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively,
“Violations”). The Company shall reimburse each Indemnified Person promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section
6(a): (i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information about the Investor furnished in writing to the Company by such Indemnified Person expressly
for use in connection with the preparation of a Registration Statement, any Other Registration Statement or any such amendment
thereof or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(c) or Section
3(e); (ii) with respect to any superseded prospectus, shall not inure to the benefit of any such person from whom the person
asserting any such Claim purchased the Registrable Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material fact contained in the superseded prospectus was corrected
in the revised prospectus, as then amended or supplemented, if such revised prospectus was timely made available by the Company
pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was promptly advised in writing not to use the
incorrect prospectus prior to the use giving rise to a violation and such Indemnified Person, notwithstanding such advice, used it;
(iii) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered
the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant to Section
3(c) or Section 3(e); (iv) shall not apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer
of the Registrable Securities by the Investor pursuant to Section 9; and (v) shall not cover Violations caused by a material
breach of the Indemnified Person’s representations, warranties or covenants under the Transaction Documents, any violations by
the Indemnified Person’s violation of state or federal securities laws or any conduct by the Indemnified Person that
constitutes fraud, gross negligence or willful misconduct (as determined by a final non-appealable judgment of court having
jurisdiction over such matter).
b. Promptly after receipt by an Indemnified Person under this Section 6 of notice of the commencement of any action or proceeding
by a third party, which shall be deemed to include any claim by a shareholder of the Company (including any governmental action or proceeding),
involving a Claim, such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section
6, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and,
to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and to
the Indemnified Person; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the fees and
expenses to be paid by the Company, if, in the reasonable opinion of counsel retained by the Company, the representation by such counsel
of the Indemnified Person and the Company would be inappropriate due to actual or potential differing interests between such Indemnified
Person and any other party represented by such counsel in such proceeding. The Indemnified Person shall cooperate fully with the Company
in connection with any negotiation or defense of any such action or third party Claim by the Company and shall furnish to the Company
all information reasonably available to the Indemnified Person which relates to such action or third party Claim. The indemnifying party
shall keep the Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect
thereto. The Company shall not be liable for any settlement of any such third party action, Claim or proceeding effectuated without its
written consent, provided, however, that the Company shall not unreasonably withhold, delay or condition its consent. The Company shall
not, without the consent of the Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise
which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release
from all liability in respect to such third party Claim or litigation. Following indemnification as provided for hereunder, the Company
shall be subrogated to all rights of the Indemnified Person with respect to all third parties, firms or corporations relating to the matter
for which indemnification has been made. The failure to deliver written notice to the Company within a reasonable time of the commencement
of any such action shall not relieve the Company of any liability to the Indemnified Person under this Section 6, except to the
extent that the Company is prejudiced in its ability to defend such action.
c.
The indemnification required by this Section 6 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 Indemnified Damages are incurred.
d. The
indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Person against
the Company or others, and (ii) any liabilities the Company may be subject to pursuant to the law.
7. CONTRIBUTION.
To the
extent any indemnification by the Company is prohibited or limited by law, the Company agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law.
8. REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a
view to making available to the Investor the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation
of the SEC that may at any time permit the Investor to sell securities of the Company to the public without registration (“Rule
144”), the Company agrees, at the Company’s sole expense, to:
a. make and keep “current public information”
available, as such term is understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange
Act;
c.
furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by
the Company that it has complied with the reporting and or disclosure provisions of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without
registration; and
d. take such additional action as is requested by the Investor to enable the Investor to sell the Registrable Securities pursuant
to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to
the Company’s Transfer Agent as may be requested from time to time by the Investor at the Company’s expense and otherwise
fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
The Company
agrees that damages may be an inadequate remedy for any breach of the terms and provisions of this Section 8 and that Investor
shall, whether or not it is pursuing any remedies at law, be entitled to equitable relief in the form of a preliminary or permanent injunctions,
without having to post any bond or other security, upon any breach or threatened breach of any such terms or provisions.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The Company
shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Buyer. The Buyer, or any
Investor, may not assign its rights under this Agreement without the written consent of the Company other than to an affiliate of such
Investor.
10. AMENDMENT OF REGISTRATION RIGHTS.
No provision
of this Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other than in a written
instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
11. MISCELLANEOUS.
a.
A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of such Registrable
Securities.
b. Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or
(iii) one (1) business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to
the party to receive the same. The addresses for such communications shall be:
If to the Company:
OS Therapies Incorporated
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland 21638
Attention:
E-mail:
Phone:
With a copy (which shall not constitute
notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15th Floor
New York, NY 10019
Attention: Spencer G. Feldman
E-mail: SFeldman@olshanlaw.com
If to the Investor:
Square Gate Capital Master
Fund, LLC – Series 3
[___]
with a copy to (that shall not constitute notice)
Lucosky Brookman LLP
101 Wood Avenue South
Woodbridge, NJ 08830
E-mail: sbrookman@lucbro.com
Attention: Seth Brookman
or at such other address and/or
email address and/or to the attention of such other person as the recipient party has specified by written notice given to each other
party three (3) business days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s email account
containing the time, date, recipient email address, as applicable, and an image of the first page of such transmission or (C) provided
by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by email or receipt from
a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.
c.
All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of
New York.
d.
Any disputes, claims, or controversies hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein shall be referred to and resolved solely and exclusively by binding arbitration to be conducted before the Judicial
Arbitration and Mediation Service (“JAMS”), or its successor pursuant the expedited procedures set forth in the
JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”), including Rules 16.1 and 16.2 of those Rules.
The arbitration shall be held in New York, New York, before a tribunal consisting of three (3) arbitrators each of whom will be
selected in accordance with the “strike and rank” methodology set forth in Rule 15. Either party to this Agreement may,
without waiving any remedy under this Agreement, seek from any federal or state court sitting in the Southern District of New York
any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of
the arbitral tribunal. The costs and expenses of such arbitration shall be paid by and be the sole responsibility of the Company,
including but not limited to the Buyer’s attorneys’ fees and each arbitrator’s fees. The arbitrators’
decision must set forth a reasoned basis for any award of damages or finding of liability. The arbitrators’ decision and award
will be made and delivered as soon as reasonably possible and in any case within sixty (60) days’ following the conclusion of
the arbitration hearing and shall be final and binding on the parties and may be entered by any court having jurisdiction
thereof.
e.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of
any provision of this Agreement in any other jurisdiction.
f. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
g. This
Agreement and the Purchase Agreement constitute the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred
to herein and therein. This Agreement and the Purchase Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
h. Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties hereto.
i. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
j. This Agreement may be executed in identical counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission
or by e-mail in a “.pdf” format data file of a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
k. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
l.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and
no rules of strict construction will be applied against any party.
m. 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.
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed as of the Execution Date.
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THE COMPANY: |
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OS THERAPIES INCORPORATED |
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By: |
/s/ Paul Romness |
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Name: |
Paul Romness |
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Title: |
CEO |
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BUYER: |
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SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 3 |
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By: |
/s/ Christopher Perugini |
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Name: |
Christopher Perugini |
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Title: |
Managing Partner |
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- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
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- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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