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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
November
3, 2023
Date
of Report (Date of earliest event reported)
Enveric
Biosciences, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-38286 |
|
95-4484725 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
(Address
of principal executive offices) (Zip code)
Registrant’s
telephone number, including area code: (239) 302-1707
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:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
stock, par value $0.01 per share |
|
ENVB |
|
The
Nasdaq Stock Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry Into a Material Definitive Agreement.
On
November 3, 2023, Enveric Biosciences, Inc. (the “Company”) entered into a purchase agreement (the “Purchase
Agreement”) and a registration rights agreement (the “Registration Rights Agreement”), with Lincoln Park Capital Fund,
LLC (“Lincoln Park”), pursuant to which Lincoln Park has committed to purchase up to $10.0 million of the Company’s
common stock, par value $0.01 per share (the “Common Stock”) subject to certain limitations and satisfaction of the conditions
set forth in the Purchase Agreement.
Under
the terms and subject to the conditions of the Purchase Agreement, the Company has the right, but not the obligation, to sell to Lincoln
Park, and Lincoln Park is obligated to purchase up to $10.0 million of the Company’s Common Stock (the “Purchase Shares”).
Such sales of Common Stock by the Company, if any, will be subject to certain limitations set forth in the Purchase Agreement, and may
occur from time to time, at the Company’s sole discretion, over the 24-month period commencing on the date that the conditions
to Lincoln Park’s purchase obligation set forth in the Purchase Agreement are satisfied, including that a registration statement
on Form S-1 covering the resale of the shares of our Common Stock that have been and may be issued to Lincoln Park under the Purchase
Agreement, which the Company agreed to file with the Securities and Exchange Commission (the “SEC”) pursuant to the Registration
Rights Agreement, is declared effective by the SEC and a final prospectus relating thereto is filed with the SEC (the date on which all
of such conditions are satisfied, the “Commencement Date”).
From
and after the Commencement Date, on any business day, the Company may, by written notice, direct Lincoln Park to purchase up to 25,000
shares of Common Stock on such business day (or the purchase date) at a purchase price per share that will be determined in accordance
with the Purchase Agreement at the time the Company delivers such written notice to Lincoln Park (a “Regular Purchase”).
The maximum number of shares the Company may sell to Lincoln Park in a Regular Purchase may be increased by certain amounts to up to
35,000 shares, with the applicable maximum share limit determined by whether the closing sale price per share of Common Stock as reported
on The Nasdaq Capital Market (“Nasdaq”) on the applicable purchase date for such Regular Purchase equals or exceeds certain
minimum price thresholds set forth in the Purchase Agreement. The purchase price per share for each Regular Purchase will be based on
prevailing market prices of the Common Stock immediately preceding the time of sale as computed in accordance with the terms set forth
in the Purchase Agreement. Lincoln Park’s maximum purchase commitment in any single Regular Purchase may not exceed $500,000. There
are no upper limits on the price per share that Lincoln Park must pay for shares of Common Stock under the Purchase Agreement.
If
the Company directs Lincoln Park to purchase the maximum number of shares of Common Stock that the Company may sell in a Regular Purchase,
then in addition to such Regular Purchase, and subject to certain conditions and limitations in the Purchase Agreement, the Company may
direct Lincoln Park to purchase additional shares of Common Stock in an “accelerated purchase” (each, an “Accelerated
Purchase”) and an “additional accelerated purchase” (each, an “Additional Accelerated Purchase”) (including
multiple Additional Accelerated Purchases on the same trading day) as provided in the Purchase Agreement. The purchase price per share
for each Accelerated Purchase and Additional Accelerated Purchase will be based on market prices of the Common Stock on the applicable
purchase date for such Accelerated Purchases and such Additional Accelerated Purchases.
The
Company will control the timing and amount of any sales of Common Stock to Lincoln Park pursuant to the Purchase Agreement. Lincoln Park
has no right to require the Company to sell any shares of Common Stock to Lincoln Park, but Lincoln Park is obligated to make purchases
as the Company directs, subject to certain conditions set forth in the Purchase Agreement.
Actual
sales of shares of Common Stock to Lincoln Park will depend on a variety of factors to be determined by the Company from time to time,
including, among others, general 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 under the Purchase Agreement to the Company
will depend on the frequency and prices at which the Company sells shares of its stock to Lincoln Park. The Company expects that any
net proceeds received by the Company from such sales to Lincoln Park will be used for general corporate purposes, which may include funding
research and development, increasing working capital, reducing indebtedness, acquisitions or investments in businesses, products or technologies
that are complementary to their own, and capital expenditures.
In
the case of Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, the purchase price per share will be equitably
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring
during the business days used to compute the purchase price.
The
aggregate number of shares that the Company can issue to Lincoln Park under the Purchase Agreement may in no case exceed 7,692,308
shares (subject to adjustment as described above) of the Common Stock (which is equal to the amount approved by the Company’s
stockholders at the Company’s Annual Meeting of Stockholders on November 2, 2023 pursuant to Nasdaq Marketplace Rules 5635(a),
(b), and (d)) (the “Stockholder Approved Exchange Cap”), unless further stockholder approval is obtained to issue
Purchase Shares above the Stockholder Approved Exchange Cap.
In
all cases, the Purchase Agreement also prohibits the Company from directing Lincoln Park to purchase any shares of Common Stock if those
shares, when aggregated with all other shares of Common Stock then beneficially owned by Lincoln Park (as calculated pursuant to Section
13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder), would result in Lincoln Park beneficially owning
more than 9.99% of the then total outstanding shares of Common Stock).
There
are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase
Agreement or Registration Rights Agreement, except the Company is prohibited (with certain specified exceptions set forth in the Purchase
Agreement) from effecting or entering into an agreement to effect an “equity line of credit” or other continuous offering
or similar offering in which the Company may issue and sell Common Stock, from time to time over a certain period of time, at future
determined prices based on the market prices of the Common Stock at the time of each such issuance and sale. The Purchase Agreement does
not restrict the Company’s ability to issue and sell Common Stock pursuant to its previously announced “at-the-market offering.”
Lincoln Park has agreed not to engage in or effect, directly or indirectly, for its own principal account or for the principal account
of any of its affiliates, any short sales of the Common Stock or hedging transaction that establishes a net short position in the Common
Stock during the term of the Purchase Agreement.
Pursuant
to the terms of the Purchase Agreement, on November 3, 2023, the Company issued 139,403 shares of Common Stock (the “Commitment
Shares”) to Lincoln Park as consideration for its commitment to purchase shares of Common Stock under the Purchase Agreement.
The
Purchase Agreement and the Registration Rights Agreement contain customary representations, warranties, conditions and indemnification
obligations of the parties. The Company has the right to terminate the Purchase Agreement at any time with one business day notice, at
no cost or penalty. Following the Commencement Date, upon any “Event of Default” under the Purchase Agreement and its continuance,
the Company may not initiate any regular or other purchase of shares by Lincoln Park, until such Event of Default is cured.
The
foregoing descriptions of the Purchase Agreement and the Registration Rights Agreement are summaries and are qualified in their entirety
by reference to the full texts of the Purchase Agreement and Registration Rights Agreement, which are filed as Exhibits 10.1 and 10.2,
respectively, to this Current Report on Form 8-K and incorporated herein by reference. The representations, warranties and covenants
contained in such agreements were made only for purposes of such agreements and as of specific dates, were solely for the benefit of
the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
This
current report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any shares of common stock in any
state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the
securities laws of any such state or other jurisdiction.
Item
3.02. Unregistered Sales of Equity Securities
To
the extent required by Item 3.02 of Form 8-K, the information contained in Item 1.01 is hereby incorporated by reference into this Item
3.02 in its entirety.
In
the Purchase Agreement, Lincoln Park represented to the Company, among other things, that it is an “accredited investor”
(as such term is defined in Rule 501(a)(3) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”)).
The Commitment Shares were issued and the Purchase Shares will be issued and sold by the Company to Lincoln Park in reliance upon the
exemptions from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act and Rule 506(b)
of Regulation D thereunder.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
November 6, 2023 |
ENVERIC
BIOSCIENCES, INC. |
|
|
|
|
By: |
/s/
Joseph Tucker |
|
|
Joseph
Tucker |
|
|
Chief
Executive Officer |
Exhibit
10.1
PURCHASE
AGREEMENT
THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of November 3, 2023, is made by and between ENVERIC BIOSCIENCES,
INC., a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability
company (the “Investor”).
WHEREAS:
Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from
the Company, up to Ten Million Dollars ($10,000,000) of the Company’s common stock, $0.01 par value per share (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”
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:
For
purposes of this Agreement, the following terms shall have the following meanings:
(a) “Accelerated
Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the Business Day
immediately following the applicable Purchase Date with respect to the corresponding Regular Purchase referred to in Section 2(b)
hereof.
(b)
“Accelerated Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section
2(b) hereof, any minimum per share price threshold set forth by the Company in the applicable Accelerated Purchase Notice.
(c) “Accelerated
Purchase Notice” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to purchase the applicable Accelerated Purchase Share Amount at
the Accelerated Purchase Price on the Accelerated Purchase Date for such Accelerated Purchase in accordance with this Agreement, and
specifying any Accelerated Purchase Minimum Price Threshold determined by the Company.
(d) “Accelerated
Purchase Price” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the lower of ninety-four
percent (94%) of (i) the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated Purchase Date, or
such other time publicly announced by the Principal Market as the official open (or commencement) of trading on the Principal Market
on such applicable Accelerated Purchase Date (the “Accelerated Purchase Commencement Time”), and ending at the earliest
of (A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or such other time publicly announced by the Principal
Market as the official close of trading on the Principal Market on such applicable Accelerated Purchase Date, (B) such time, from and
after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the total number (or volume) of shares of Common
Stock traded on the Principal Market has exceeded the applicable Accelerated Purchase Share Volume Maximum, and (C) such time, from and
after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the Sale Price has fallen below the applicable Accelerated
Purchase Minimum Price Threshold (such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated Purchase Termination Time”),
and (ii) the Closing Sale Price of the Common Stock on such applicable Accelerated Purchase Date (to be appropriately adjusted for any
reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(e) “Accelerated
Purchase Share Amount” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the number
of Purchase Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice, which number of Purchase
Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company to be purchased by the Investor
pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in Section 2(b) hereof
(subject to the Purchase Share limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Accelerated Purchase
Share Percentage multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during the period
on the applicable Accelerated Purchase Date beginning at the Accelerated Purchase Commencement Time for such Accelerated Purchase and
ending at the Accelerated Purchase Termination Time for such Accelerated Purchase.
(f) “Accelerated
Purchase Share Percentage” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, thirty
percent (30%).
(g) “Accelerated
Purchase Share Volume Maximum” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof,
a number of shares of Common Stock equal to (i) the applicable Accelerated Purchase Share Amount properly directed by the Company to
be purchased by the Investor in the applicable Accelerated Purchase Notice for such Accelerated Purchase, divided by (ii) the Accelerated
Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction).
(h) “Additional
Accelerated Purchase Date” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the Business Day (i) that is the Accelerated Purchase Date with respect to the corresponding Accelerated Purchase referred to
in Section 2(b) hereof and (ii) on which the Investor receives, prior to 1:00 p.m., Eastern time, on such Business Day, a valid
Additional Accelerated Purchase Notice for such Additional Accelerated Purchase in accordance with this Agreement.
(i)
“Additional Accelerated Purchase Minimum Price Threshold” means, with respect to any Additional Accelerated Purchase
made pursuant to Section 2(c) hereof, any minimum per share price threshold set forth by the Company in the applicable Additional
Accelerated Purchase Notice.
(j) “Additional
Accelerated Purchase Notice” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the applicable Additional Accelerated
Purchase Share Amount at the Additional Accelerated Purchase Price for such Additional Accelerated Purchase in accordance with this Agreement,
and specifying any Additional Accelerated Purchase Minimum Price Threshold determined by the Company.
(k) “Additional
Accelerated Purchase Price” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the lower of ninety-four percent (94%) of (i) the VWAP for the period on the applicable Additional Accelerated Purchase Date,
beginning at the latest of (A) the applicable Accelerated Purchase Termination Time with respect to the corresponding Accelerated Purchase
referred to in Section 2(c) hereof on such Additional Accelerated Purchase Date, (B) the applicable Additional Accelerated Purchase
Termination Time with respect to the most recently completed prior Additional Accelerated Purchase on such Additional Accelerated Purchase
Date, as applicable, and (C) the time at which all Purchase Shares subject to all prior Accelerated Purchases and Additional Accelerated
Purchases (as applicable), including, without limitation, those that have been effected on the same Business Day as the applicable Additional
Accelerated Purchase Date with respect to which the applicable Additional Accelerated Purchase relates, have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement (such latest of (i)(A), (i)(B) and (i)(C) above, the “Additional
Accelerated Purchase Commencement Time”), and ending at the earliest of (X) 4:00 p.m., Eastern time, on such Additional Accelerated
Purchase Date, or such other time publicly announced by the Principal Market as the official close of trading on the Principal Market
on such Additional Accelerated Purchase Date, (Y) such time, from and after the Additional Accelerated Purchase Commencement Time for
such Additional Accelerated Purchase, that the total number (or volume) of shares of Common Stock traded on the Principal Market has
exceeded the applicable Additional Accelerated Purchase Share Volume Maximum, and (Z) such time, from and after the Additional Accelerated
Purchase Commencement Time for such Additional Accelerated Purchase, that the Sale Price has fallen below the applicable Additional Accelerated
Purchase Minimum Price Threshold (such earliest of (i)(X), (i)(Y) and (i)(Z) above, the “Additional Accelerated Purchase Termination
Time”), and (ii) the Closing Sale Price of the Common Stock on such Additional Accelerated Purchase Date (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(l) “Additional
Accelerated Purchase Share Amount” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c)
hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional Accelerated Purchase
Notice, which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company
to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred
to in Section 2(c) hereof (subject to the Purchase Share limitations contained in Section 2(a) hereof) and (ii) an amount
equal to (A) the Additional Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume) of shares of Common
Stock traded on the Principal Market during the period on the applicable Additional Accelerated Purchase Date beginning at the Additional
Accelerated Purchase Commencement Time for such Additional Accelerated Purchase and ending at the Additional Accelerated Purchase Termination
Time for such Additional Accelerated Purchase.
(m) “Additional
Accelerated Purchase Share Percentage” means, with respect to any Additional Accelerated Purchase made pursuant to Section
2(c) hereof, thirty percent (30%).
(n) “Additional
Accelerated Purchase Share Volume Maximum” means, with respect to any Additional Accelerated Purchase made pursuant to Section
2(c) hereof, a number of shares of Common Stock equal to (i) the applicable Additional Accelerated Purchase Share Amount properly
directed by the Company to be purchased by the Investor in the applicable Additional Accelerated Purchase Notice for such Additional
Accelerated Purchase, divided by (ii) the Additional Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(o) “Alternate
Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof,
the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated in accordance
with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such Regular Purchase,
a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, Fifty Thousand Dollars ($50,000).
(p) “Applicable
Laws” means, with respect to any Person, the common law and any federal, provincial, state, territorial, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees or settlement agreements (including administrative or judicial precedents or authorities) and the interpretation
or administration thereof by, and other determinations, directives, requirements or requests of, any governmental authority, in each
case whether or not having the force of law and, in each case, that are applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.
(q) “Available
Amount” means, initially, Ten Million Dollars ($10,000,000) in the aggregate, which amount shall be reduced by the Purchase
Amount each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.
(r) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(s) “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market is open
for trading for a period of time less than the customary time.
(t) “Bylaws”
means the Company’s Amended and Restated Bylaws, as amended.
(u) “Charter”
means the Company’s Certificate of Incorporation, as amended.
(v) “Closing
Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal Market as
reported by the Principal Market.
(w) “Commitment
Shares” has the meaning set forth in Section 5(e).
(x) “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment), which
is designated, either orally or in writing, as “Confidential,” “Proprietary” or some similar designation. Information
communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information
within ten (10) Business Days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing
party 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 action or inaction of the receiving party; (iii)
is already in the possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party
as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party and is not known
by the receiving party to be a breach of such third party’s obligations of confidentiality; or (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.
(y) “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(z) “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(aa)
“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, once a DWAC notice is received, to the
Investor’s or its designee’s specified Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated
Securities Transfer (FAST) Program, or any similar program hereafter adopted by DTC performing substantially the same
function.
(bb) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(cc)
“Fully Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction from and after the date of this Agreement, the Regular Purchase Share Limit (as defined
in Section 2(a) hereof) in effect on the applicable date of determination, after giving effect to the full proportionate adjustment
thereto made pursuant to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction.
(dd) “Material
Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the results of
operations, operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other than any
material adverse effect that resulted exclusively from (A) any change in the United States or foreign economies or securities or financial
markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (B) any change
that generally affects the industry in which the Company and its Subsidiaries operate that does not have a disproportionate effect on
the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with earthquakes, hostilities, acts of war,
sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage or terrorism
or military actions existing as of the date hereof that does not have a disproportionate effect on the Company and its Subsidiaries,
taken as a whole, (D) any action taken by the Investor, its affiliates or its or their successors and assigns with respect to the transactions
contemplated by this Agreement, (E) the effect of any change in applicable laws or accounting rules that does not have a disproportionate
effect on the Company and its Subsidiaries, taken as a whole, or (F) any change resulting from compliance with terms of this Agreement
or the consummation of the transactions contemplated by this Agreement, or (iii) the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document to be performed as of the date of determination.
(ee) “Maturity
Date” means the first day of the month immediately following the twenty-four (24) month anniversary of the Commencement Date.
(ff) “PEA
Period” means the period commencing at 9:30 a.m., Eastern time, on the tenth (10th) Business Day immediately prior
to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as such
term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day immediately following,
the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as
such term is defined in the Registration Rights Agreement).
(gg) “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.
(hh)
“Principal Market” means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however,
that in the event the Company’s Common Stock is at any time not listed on The Nasdaq Capital Market (or any nationally recognized
successor thereto) but is listed or traded on The Nasdaq Global Select Market, The Nasdaq Global Market, the New York Stock Exchange,
the NYSE American, the NYSE Arca, the OTC Bulletin Board, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally
recognized successor to any of the foregoing), then the “Principal Market” shall mean such other market or exchange which
then constitutes the principal trading market for the Company’s Common Stock.
(ii) “Purchase
Amount” means, with respect to any Regular Purchase, any Accelerated Purchase, or any Additional Accelerated Purchase made
hereunder, as applicable, the portion of the Available Amount to be purchased by the Investor pursuant to Section 2 hereof.
(jj) “Purchase
Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business Day on which the
Investor receives, after 4:00 p.m., Eastern time, but prior to 6:00 p.m., Eastern time, on such Business Day, a valid Regular Purchase
Notice for such Regular Purchase in accordance with this Agreement.
(kk) “Purchase
Price” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the lower of: (i) the lowest
Sale Price on the Purchase Date for such Regular Purchase or (ii) the arithmetic average of the three (3) lowest Closing Sale Prices
for the Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately preceding such Purchase Date
for such Regular Purchase (in each case, to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction that occurs on or after the date of this Agreement).
(ll) “Registration
Rights Agreement” means that certain Registration Rights Agreement, of even date herewith between the Company and the Investor.
(mm) “Registration
Statement” has the meaning set forth in the Registration Rights Agreement.
(nn) “Regular
Purchase Notice” means, with respect to a Regular Purchase pursuant to Section 2(a) hereof, an irrevocable written notice
from the Company to the Investor directing the Investor to buy a specified number of Purchase Shares (subject to the Purchase Share limitations
contained in Section 2(a) hereof) at the applicable Purchase Price for such Regular Purchase in accordance with this Agreement.
(oo) “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(pp) “SEC”
means the U.S. Securities and Exchange Commission.
(qq) “Securities”
means, collectively, the Purchase Shares and the Commitment Shares (as defined below).
(rr) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(ss) “Subsidiary”
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.
(tt)
“Transaction Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration
Rights Agreement and the schedules and exhibits thereto.
(uu)
“Transfer Agent” means Equiniti Trust Company, LLC, or such other Person who is then serving as the
transfer agent for the Company in respect of the Common Stock.
(vv) “VWAP”
means in respect of an Accelerated Purchase Date and an Additional Accelerated Purchase Date, as applicable, the volume weighted average
price of the Common Stock on the Principal Market, as reported on the Principal Market.
| 2. | PURCHASE
OF COMMON STOCK. |
Subject
to the terms and conditions set forth in this Agreement, the Company has the right, but not the obligation to sell to the Investor, in
the Company’s sole and absolute discretion, and the Investor has the obligation to purchase from the Company, Purchase Shares as
follows:
(a) Commencement
of Regular Sales of Common Stock. Beginning one (1) Business Day following the satisfaction of the conditions set forth in Sections
7 and 8 hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement Date”)
and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of
a Regular Purchase Notice from time to time, to purchase up to Twenty Five Thousand (25,000) Purchase Shares, provided that the Closing
Sale Price of the Common Stock on the applicable Purchase Date is not below $0.10 and subject to adjustment as set forth below in this
Section 2(a) (such maximum number of Purchase Shares, as may be adjusted from time to time, the “Regular Purchase Share Limit”),
at the Purchase Price on the Purchase Date (each such purchase a “Regular Purchase”); provided, however,
that the Regular Purchase Share Limit shall be increased to: (i) Thirty Thousand (30,000) Purchase Shares, if the Closing Sale Price
of the Common Stock on the applicable Purchase Date is not below $5.00, and (ii) Thirty Five Thousand (35,000) Purchase Shares, if the
Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $10.00 (all of which share and dollar amounts shall
be appropriately proportionately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction);
provided that if, after giving effect to the full proportionate adjustment to the Regular Purchase Share Limit therefor, the Fully
Adjusted Regular Purchase Share Limit then in effect would preclude the Company from delivering to the Investor a Regular Purchase Notice
hereunder for a Purchase Amount (calculated by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase
Share Limit, by (Y) the Purchase Price per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor)
equal to or greater than the Alternate Adjusted Regular Purchase Share Limit, the Regular Purchase Share Limit for such Regular Purchase
Notice shall not be fully adjusted to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase
Share Limit for such Regular Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share Limit
as of the applicable Purchase Date for such Regular Purchase Notice; and provided, further, however, that the Investor’s
committed obligation under any single Regular Purchase, other than any Regular Purchase with respect to which an Alternate Adjusted Regular
Purchase Share Limit shall apply, shall not exceed Five Hundred Thousand Dollars ($500,000). If the Company delivers any Regular Purchase
Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding sentence, such Regular Purchase Notice
shall be void ab initio only with respect to the extent of the amount by which the number of Purchase Shares set forth in such Regular
Purchase Notice exceeds the number of Purchase Shares which the Company is permitted to include in such Purchase Notice in accordance
herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Regular Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the number of Purchase Shares which the Company is permitted
to include in such Regular Purchase Notice. The Company may deliver a Regular Purchase Notice to the Investor multiple times on the same
Business Day, provided the Company has not failed to deliver Purchase Shares for the most recent prior Regular Purchase. Notwithstanding
the foregoing, the Company shall not deliver any Regular Purchase Notices during the PEA Period.
(b) Accelerated
Purchases. Subject to the terms and conditions of this Agreement, from and after one (1) Business Day following the Commencement
Date, in addition to purchases of Purchase Shares as described in Section 2(a) above, the Company shall also have the right, but
not the obligation, to direct the Investor, by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance
with this Agreement, to purchase the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated
Purchase Date therefor in accordance with this Agreement (each such purchase, an “Accelerated Purchase”). The Company
may deliver an Accelerated Purchase Notice to the Investor only on a Purchase Date on which the Company also properly submitted a Regular
Purchase Notice providing for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in
effect on such Purchase Date in accordance with this Agreement (including, without limitation, giving effect to any automatic increase
to the Regular Purchase Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth
in Section 2(a) above on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant
to Section 2(a) above). If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an amount of
Purchase Shares that exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated
Purchase Notice, such Accelerated Purchase Notice shall be void ab initio only with respect to the extent of the amount by which
the number of Purchase Shares set forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company
is then permitted to include in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation),
and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice; provided,
however, that the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which the Company is permitted
to include in such Accelerated Purchase Notice. Within one (1) Business Day after completion of each Accelerated Purchase Date for an
Accelerated Purchase, the Investor will provide to the Company a written confirmation of such Accelerated Purchase setting forth the
applicable Accelerated Purchase Share Amount and Accelerated Purchase Price for such Accelerated Purchase (each, an “Accelerated
Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not deliver any Accelerated Purchase Notices during
the PEA Period.
(c) Additional
Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after one (1) Business Day following the Commencement
Date, in addition to purchases of Purchase Shares as described in Section 2(a) and Section 2(b) above, the Company shall
also have the right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of an Additional Accelerated
Purchase Notice on an Additional Accelerated Purchase Date in accordance with this Agreement, to purchase the applicable Additional Accelerated
Purchase Share Amount at the applicable Additional Accelerated Purchase Price therefor in accordance with this Agreement (each such purchase,
an “Additional Accelerated Purchase”). The Company may deliver multiple Additional Accelerated Purchase Notices to
the Investor on an Additional Accelerated Purchase Date; provided, however, that the Company may deliver an Additional
Accelerated Purchase Notice to the Investor only (i) on a Business Day that is also the Accelerated Purchase Date for an Accelerated
Purchase with respect to which the Company properly submitted to the Investor an Accelerated Purchase Notice in accordance with this
Agreement on the applicable Purchase Date for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share
Limit then in effect in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the
Regular Purchase Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section
2(a) above on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section
2(a) above), and (ii) if all Purchase Shares subject to all prior Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases, including, without limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated
Purchase Date with respect to which the applicable Additional Accelerated Purchase relates, in each case have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice
directing the Investor to purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the
Company is then permitted to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall
be void ab initio only with respect to the extent of the amount by which the number of Purchase Shares set forth in such Additional
Accelerated Purchase Notice exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in
such Additional Accelerated Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the Investor
shall have no obligation to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice; provided,
however, that the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share Amount which the Company
is permitted to include in such Additional Accelerated Purchase Notice. Within one (1) Business Day after completion of each Additional
Accelerated Purchase Date, the Investor will provide to the Company a written confirmation of each Additional Accelerated Purchase on
such Additional Accelerated Purchase Date setting forth the applicable Additional Accelerated Purchase Share Amount and Additional Accelerated
Purchase Price for each such Additional Accelerated Purchase on such Additional Accelerated Purchase Date (each, an “Additional
Accelerated Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not deliver any Additional Accelerated
Purchase Notices during the PEA Period.
(d)
Compliance with Principal Market Rules. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations
set forth in Section 2(e), the Company shall not issue more than 7,692,308 shares (including the Commitment Shares) of
Common Stock (the “Stockholder Approved Exchange Cap”) under this Agreement, which amount was approved by
the Company’s stockholders at the Company’s Annual Meeting of Stockholders on November 2, 2023 pursuant to Nasdaq
Marketplace Rules 5635(a),(b), and (d), unless further stockholder approval is obtained to issue in excess of the Stockholder
Approved Exchange Cap. Notwithstanding the foregoing, the Company shall not be required or permitted to issue, and the Investor shall
not be required to purchase, any shares of Common Stock under this Agreement if such issuance would violate the rules or regulations
of the Principal Market. The Company may, in its sole discretion, determine whether to obtain stockholder approval to issue more than
7,692,308 of its outstanding shares of Common Stock hereunder if such issuance would require stockholder approval under the rules
or regulations of the Principal Market. The Stockholder Approved Exchange Cap shall be reduced, on a share-for-share basis, by
the number of shares of Common Stock issued or issuable that may be aggregated with the transactions contemplated by this Agreement under
applicable rules of the Principal Market.
(e) Payment
for Purchase Shares. For each Regular Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount with
respect to such Regular Purchase, as applicable, as full payment for such Purchase Shares via wire transfer of immediately available
funds on the same Business Day that the Investor receives such Purchase Shares, if such Purchase Shares are received by the Investor
before 1:00 p.m., Eastern time, or, if such Purchase Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business
Day. For each Accelerated Purchase and each Additional Accelerated Purchase, the Investor shall pay to the Company an amount equal to
the Purchase Amount with respect to such Accelerated Purchase and Additional Accelerated Purchase, respectively, as full payment for
such Purchase Shares via wire transfer of immediately available funds on the second Business Day following the date that the Investor
receives such Purchase Shares. If the Company or the Transfer Agent shall fail for any reason or for no reason to electronically transfer
any Purchase Shares as DWAC Shares with respect to any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase (as
applicable) within two (2) Business Days following the receipt by the Company of the Purchase Price, Accelerated Purchase Price or Additional
Accelerated Purchase Price, respectively, therefor in compliance with this Section 2(e), and if on or after such Business Day
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 Purchase Shares that the Investor anticipated receiving from the Company in respect of such Regular Purchase, Accelerated
Purchase or Additional Accelerated Purchase (as applicable), then the Company shall, within two (2) Business Days after the Investor’s
request, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including customary brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the Company’s
obligation to deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor
such Purchase 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 Purchase Amount paid by the Investor pursuant to this Agreement for all of the Purchase Shares to be purchased by the Investor
in connection with such purchases. The Company shall not issue any fraction of a share of Common Stock upon any Regular Purchase, Accelerated
Purchase or Additional Accelerated Purchase. If the issuance would result in the issuance of a fraction of a share of Common Stock, the
Company shall round such fraction of a share of Common Stock up or down to the nearest whole share (with 0.5 rounded up). All payments
made under this Agreement shall be made in lawful money of the United States of America or wire transfer of immediately available funds
to such account as the Company may from time to time designate by written notice in accordance with the provisions of this Agreement.
Whenever any amount expressed to be due by the terms of this Agreement is due on any day that is not a Business Day, the same shall instead
be due on the next succeeding day that is a Business Day.
(f) Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or sell,
and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with all other
shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section 13(d) of the Exchange
Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor and its affiliates of more than
9.99% of the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”). The Investor
and the Company shall each cooperate in good faith in the determinations required hereby and the application hereof. The Investor’s
written certification to the Company of the applicability of the Beneficial Ownership Limitation, and the resulting effect thereof hereunder
at any time, shall be conclusive with respect to the applicability thereof and such result absent manifest error.
| 3. | INVESTOR’S
REPRESENTATIONS AND WARRANTIES. |
The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:
(a) Organization,
Authority. Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, with the requisite power and authority to enter into and to consummate the transactions contemplated by this Agreement
and the other Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
(b) Investment
Purpose. The Investor is acquiring the Securities as principal for its own account for investment only and not with a view to or
for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of
such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting
the Investor’s right to sell the Securities at any time pursuant to the Registration Statement described herein or otherwise in
compliance with applicable federal and state securities laws). The Investor is acquiring the Securities hereunder in the ordinary course
of its business.
(c) Accredited
Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation D promulgated
under the Securities Act.
(d) Information.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is able to bear the economic
risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities and (iii) has had an opportunity
to ask questions of and receive answers from the officers of the Company concerning the financial condition and business of the Company
and other matters related to an investment in the Securities. Neither such inquiries nor any other due diligence investigations conducted
by the Investor or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations
and warranties contained in Section 4 below. The Investor has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to its acquisition of the Securities and is not relying on any accounting,
legal tax or other advice from the Company or its officers, employees or representatives. The Investor acknowledges and agrees that the
Company neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in Section 4 hereof.
(e) No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment in the Securities
nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(f) Validity;
Enforcement. This Agreement and the other Transaction Documents have been duly and validly authorized, executed and delivered on
behalf of the Investor and each is a valid and binding agreement of the Investor enforceable against the Investor in accordance with
its terms, subject as to enforceability to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(g) Residency.
The Investor’s principal place of business is located in of the State of Illinois.
(h) No
Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has any of
the Investor, its agents (in their capacities as such), representatives or affiliates (in their capacities as such) engaged in or effected,
in any manner whatsoever, directly or indirectly, any (i) “short sale” (as such term is defined in Rule 200 of Regulation
SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction that establishes a net short position with respect to the Common
Stock.
| 4. | REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. |
The
Company represents and warrants to the Investor that, as of the date hereof and as of the Commencement Date:
(a) Organization
and Qualification. The Company and each of its 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 corporate power and
authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of
its Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles of formation or incorporation,
bylaws or other organizational or charter documents except as would not be expected to result in a Material Adverse Effect. Each of the
Company and its 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, 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, except where the failure to be so qualified or in good standing or such proceeding, as the case may be, would not reasonably
be expected to result in a Material Adverse Effect. The Company has no Subsidiaries, except for the subsidiaries set forth on Exhibit
21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
(b) Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and each of the other Transaction Documents, and to issue the Securities in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated
hereby and thereby, including without limitation, the issuance of the Commitment Shares (as defined below in Section 5(e)), the
reservation for issuance and the issuance of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s
board of directors, or a validly authorized committee thereof (collectively, the “Board of Directors”), and no further
consent or authorization is required by the Company, its Board of Directors or any committee thereof, or its stockholders (save to the
extent provided in this Agreement), (iii) this Agreement has been, and each other Transaction Document shall be on the Commencement Date,
duly executed and delivered by the Company and (iv) this Agreement constitutes, and each other Transaction Document upon its execution
on behalf of the Company, shall constitute, the valid and binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights
and remedies. The Board of Directors of the Company has approved the resolutions (the “Signing Resolutions”) substantially
in the form as set forth as Exhibit B attached hereto to authorize this Agreement and the transactions contemplated hereby. The
Signing Resolutions are valid, in full force and effect and have not been modified or supplemented in any respect. The Company has delivered
to the Investor a true and correct copy of a unanimous written consent adopting the Signing Resolutions executed by all of the members
of the Board of Directors of the Company. Except as set forth in this Agreement, no other approvals or consents of the Board of Directors,
any other authorized committee thereof, and/or stockholders is necessary under applicable laws and the Company’s Charter and/or
Bylaws to authorize the execution and delivery of this Agreement or any of the transactions contemplated hereby, including, but not limited
to, the issuance of the Commitment Shares and the issuance of the Purchase Shares.
(c) Capitalization.
As of the date hereof, the authorized capital stock of the Company consists of 100,000,000 shares of $0.01 par value Common Stock and
20,000,000 shares of $0.01 par value preferred stock. Except as disclosed in the SEC Documents (as defined below), (i) no shares of the
Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted
by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock
of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which
the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except
the Registration Rights Agreement and those registration rights for which a registration statement has been filed), (v) there are no
outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and
there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company does
not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. The Company
has furnished to the Investor true and correct copies of the Charter and the Bylaws, each as in effect on the date hereof, and copies
of any documents containing the material rights of holders of securities convertible or exercisable for Common Stock, to the extent not
filed as an exhibit to the Company’s Form 10-K filed with the SEC on March 31, 2023, as amended by the Company’s Form 10-K/A
filed with the SEC on June 9, 2023.
(d) Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares
shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of first refusal
and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common
Stock. 1,140,477 shares of Common Stock have been duly authorized and reserved for issuance upon purchase under this Agreement as Purchase
Shares. 139,403 shares of Common Stock have been duly authorized and reserved for issuance as Commitment Shares in accordance with this
Agreement (subject, in each case, to equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction). Upon issuance in accordance with the terms and conditions of this Agreement, each of the Purchase Shares
and the Commitment Shares shall be validly issued, fully paid and nonassessable and free from all taxes, Liens, charges, restrictions,
rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock. Upon receipt of the Purchase Shares and the Commitment Shares, the Investor will have good and marketable
title to such Securities and such Securities will be immediately freely tradeable on the Principal Market by any holder who is not an
“affiliate” of the Company under the Securities Act.
(e) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the reservation for issuance and issuance of the
Purchase Shares and the Commitment Shares) will not (i) result in a violation of the Charter, any certificate of designations, preferences
and rights of any outstanding series of preferred stock of the Company or the Bylaws or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or
result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations
and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property
or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations under clause (ii), which would not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its Charter, any certificate of designation,
preferences and rights of any outstanding series of preferred stock of the Company or Bylaws or their organizational charter or bylaws,
respectively. Neither the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to
the Company or its Subsidiaries, except for possible conflicts, defaults, terminations or amendments that would not reasonably be expected
to have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall not be conducted,
in violation of any law, ordinance or regulation of any governmental entity, except for possible violations, the sanctions for which
either individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. Except as specifically contemplated
by this Agreement and as required under the Securities Act or applicable state securities laws and the rules and regulations of the Principal
Market, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations
under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in this
Agreement, (i) all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the
preceding sentence on or prior to the date hereof or on or prior to the Commencement Date shall have been obtained or effected on or
prior to the date hereof and on or prior to the Commencement Date, respectively, and (ii) all consents, authorizations, orders, filings
and registrations which the Company is required to obtain pursuant to the preceding sentence with respect to the Commencement shall be
obtained or effected on or prior to the Commencement Date.
(f) SEC
Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
twelve (12) months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Registration
Statement, 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.
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 the light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis
during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods presented, subject, in the case of unaudited financial statements, to normal, immaterial, year-end audit
adjustments. Except as publicly available through the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (EDGAR),
the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof other than SEC comment
letters relating to the Company’s filings under the Exchange Act and the Securities Act. There are no SEC comments that have not
been resolved to the satisfaction of the SEC staff. To the Company’s knowledge, the SEC has not commenced any enforcement proceedings
against the Company or any of its Subsidiaries.
(g) Absence
of Certain Changes. Except as disclosed in the SEC Documents, since June 30, 2023, there has been no material adverse change in the
business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries. The Company has not
taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company
or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency
proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
(h) Absence
of Litigation. Except as disclosed in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before or
by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any
of its Subsidiaries, threatened against the Company, the Common Stock or any of the Company’s or its Subsidiaries’ officers
or directors in their capacities as such, which could reasonably be expected to have a Material Adverse Effect.
(i) Acknowledgment
Regarding 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.
(j) No
Aggregated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Securities to be integrated or aggregated with prior offerings by the Company in a manner that would require stockholder
approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated. The issuance
and sale of the Commitment Shares hereunder does not, and subject to the terms of this Agreement, the issuance and sale of the additional
Purchase Shares will not, contravene the rules and regulations of the Principal Market.
(k) Intellectual
Property Rights. The Company and its Subsidiaries 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, except as such
failure to own, possess or acquire such rights would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. None of the Company’s material trademarks, trade names, service marks, service mark registrations, service names,
patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual property
rights have expired or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the date
of this Agreement, except as would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the SEC Documents,
the Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries of any material trademark,
trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations,
trade secret or other similar rights 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 that has been brought against, or to the Company’s knowledge, being threatened
against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement, which could reasonably be expected to have a Material
Adverse Effect.
(l) Environmental
Laws. The Company and its Subsidiaries (i) are 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) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except 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.
(m) Title.
Except as set forth in the SEC Documents, the Company and its Subsidiaries have good and marketable title in fee simple to all real property
owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and
its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects (“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 and its Subsidiaries 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 and its Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are 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
and its Subsidiaries, taken as a whole, except for such interference which would not reasonably be expected to have a Material Adverse
Effect.
(n) Insurance.
The Company and each of its Subsidiaries are 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 its
Subsidiaries are engaged (including in respect of directors and officers liability insurance). Neither the Company nor any such Subsidiary
has been refused any insurance coverage sought or applied for and neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company and its Subsidiaries, taken as a whole.
(o) Regulatory
Permits. Except as disclosed in the SEC Documents, the Company and its Subsidiaries possess all material certificates, authorizations
and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses
as currently conducted, except where the failure to possess such certificates, authorizations or permits would not reasonably be expected
to have a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating
to the revocation or modification of any such material certificate, authorization or permit.
(p) Compliance
with Laws. The Company is not in violation of any Applicable Law, except as would not reasonably be expected to have a Material Adverse
Effect.
(q) Tax
Status. The Company and each of its Subsidiaries has made or filed all federal, state, local or foreign 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
and each of its Subsidiaries 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, and except as
would not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, there are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction.
(r) Transactions
With Affiliates. Except as disclosed in the SEC Documents, none of the Company’s stockholders, officers or directors or any
family member or affiliate of any of the foregoing, has either directly or indirectly an interest in, or is a party to, any transaction
that would be required to be disclosed as a related party transaction pursuant to Item 404 of Regulation S-K promulgated under the Securities
Act.
(s) Application
of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement 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 Charter 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.
(t) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents or any other agreements
to be entered into by the Company and the Investor that, in each case, which shall be timely publicly disclosed by the Company, 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 the Company believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Registration
Statement or the SEC Documents. The Company understands and confirms that the Investor will rely on the foregoing representation in effecting
purchases and sales of securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Investor regarding
the Company, its business and the transactions contemplated hereby, including the disclosure schedules to this Agreement, is true and
correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated by
the Company during the twelve (12) months preceding the date of this Agreement taken as a whole do not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that the
Investor neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in Section 3 hereof.
(u) Foreign
Corrupt Practices. Neither the Company nor any of its Subsidiaries nor any director or officer, nor, to the knowledge of the Company,
any agent, employee or affiliate of the Company or any Subsidiary is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, each of its Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith. The operations of the Company and each of its Subsidiaries are and have been conducted
at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the
rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
applicable governmental agency, including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy
Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative
to the group or organization continues to concur, all as amended, and any Executive order, directive or regulation pursuant to the authority
of any of the foregoing, or any orders or licenses issued thereunder (collectively, the “Money Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. Neither
the Company nor any of its Subsidiaries, nor to the knowledge of the Company any of the directors, officers or employees, agents, affiliates
or representatives of the Company or each of its Subsidiaries, is an individual or entity that is, or is owned or controlled by an individual
or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign
Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, the Balkans, Belarus, Burma/Myanmar, Cote D’Ivoire, Cuba, Democratic Republic of Congo,
Iran, Iraq, Liberia, Libya, North Korea, Russia, Sudan, Syria, Venezuela and Zimbabwe). Neither the Company nor any of its Subsidiaries
will, directly or indirectly, use the proceeds of the transactions contemplated hereby, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other individual or entity: (i) to fund or facilitate any activities or business
of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject
of Sanctions or (ii) in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual
or entity participating in the transactions contemplated hereby, whether as underwriter, advisor, investor or otherwise). For the past
five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any dealings
or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
(v) DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (FAST)
Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer (FAST)
Program. The Common Stock is not subject to any DTC “chill,” freeze or similar restriction with respect to any DTC services,
including the clearing of shares of Common Stock through DTC.
(w) Sarbanes-Oxley.
The Company is in material compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as
of the date hereof.
(x) Certain
Fees. 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 other
Persons for fees of a type contemplated in this Section 4(x) that may be due in connection with the transactions contemplated
by the Transaction Documents.
(y) Investment
Company. The Company is not required to be registered as, and immediately after receipt of any payment for the Purchase Shares will
not be required to be registered as, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.
(z) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken
no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock pursuant
to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating such registration.
The Company has filed with The Nasdaq Stock Market a Notification Form: Listing of Additional Shares for the listing of the Securities.
The Company has taken no action designed to, or likely to have the effect of, delisting the Common Stock from the Principal Market, nor
has the Company received any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance
requirements of the 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.
(aa) 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.
(bb) No
Market Manipulation. The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company in connection with the transactions contemplated in this Agreement.
(cc) Shell
Company Status. The Company is not an issuer identified in Rule 144(i)(1) under the Securities Act and has filed with the SEC on
September 18, 2017 current “Form 10 information” (as defined in Rule 144(i)(3) under the Securities Act) reflecting its status
as an entity that is not an issuer identified in Rule 144(i)(1)(i) under the Securities Act.
(dd) No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other
officer of the Company 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)(i) to (viii) 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.
(ee) Absence
of Schedules. In the event that on the date hereof, or the Commencement Date, the Company does not deliver any disclosure schedule
contemplated by this Agreement, the Company hereby acknowledges and agrees that each such undelivered disclosure schedule shall be deemed
to read as follows: “Nothing to Disclose.”
(a) Filing
of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange Act,
file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions
of, the Transaction Documents (the “Current Report”). The Company shall also file with the SEC, as soon as practicable,
and in any event within twenty (20) Business Days of the date of this Agreement, a Registration Statement on Form S-1 covering the resale
of the Purchase Shares and all of the Commitment Shares in accordance with the terms of the Registration Rights Agreement. The Company
shall permit the Investor to review and comment upon the final pre-filing draft version of each of the Current Report and the Registration
Statement at least two (2) Business Days prior to their respective filing with the SEC and, with respect to information regarding the
Investor or the transaction contemplated hereby, the Company shall not file the Current Report or the Registration Statement with the
SEC in a form to which the Investor reasonably objects. The Investor shall use its reasonable best efforts to comment upon the final
pre-filing draft version of the Current Report and the Registration Statement within one (1) Business Day from the date the Investor
receives it from the Company.
(b) Blue
Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to register
or qualify (i) the issuance and the sale of the Securities to the Investor under this Agreement and (ii) any subsequent resale of all
Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable securities or “Blue Sky” laws of
the states of the United States in such states as is reasonably requested by the Investor from time to time, and shall provide evidence
of any such action so taken to the Investor.
(c) Listing/DTC.
The Company shall use commercially reasonable efforts to maintain, so long as any shares of Common Stock shall be so listed, such listing
of all Purchase Shares and Commitment Shares from time to time issuable hereunder. The Company shall use commercially reasonable efforts
to maintain the listing of the Common Stock on the Principal Market and shall use commercially reasonable efforts to comply in all respects
with the Company’s reporting, filing and other obligations under the Exchange Act, or rules and regulations of 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 Business 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;
provided, however, that the Company shall not be required to provide the Investor copies of any such notice that the Company reasonably
believes constitutes material non-public information that the Company would not be required to contemporaneously publicly disclose in
any report or statement filed with the SEC under the Exchange Act or the Securities Act. The Company shall pay all fees and expenses
in connection with satisfying its obligations under this Section 5(c). The Company shall take all commercially reasonable action
necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares.
(d) Prohibition
of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending on the date
of termination of this Agreement as provided in Section 11, the Investor and its agents (in their capacities as such), representatives
(in their capacities as such) and affiliates shall not in any manner whatsoever enter into or effect, directly or indirectly, any (i)
“short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging
transaction, which establishes a net short position with respect to the Common Stock.
(e) Issuance
of Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, the Company shall cause
the Transfer Agent to issue on the date of this Agreement 139,403 shares of Common Stock (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction) (the “Commitment Shares”)
directly to the Investor in accordance with Section 6 hereto and the Irrevocable Transfer Agent Instructions. For the avoidance
of doubt, all of the Commitment Shares shall be fully earned as of the date of this Agreement, whether or not the Commencement shall
occur or any Purchase Shares are purchased by the Investor under this Agreement and irrespective of any termination of this Agreement.
(f) Due
Diligence; Non-Public Information. During the term of this Agreement, the Investor shall have the right, from time to time as the
Investor may reasonably deem appropriate, and upon reasonable advance notice to the Company, to perform reasonable due diligence on the
Company during normal business hours. The Company and its officers and employees shall provide material 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.
Each party hereto agrees not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential
Information for any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto
acknowledges that the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable
measures to protect the secrecy of any Confidential Information disclosed by the other party. The receiving party may disclose Confidential
Information to the extent such information is required to be disclosed by law, regulation or order of a court of competent jurisdiction
or regulatory authority, provided that the receiving party shall promptly notify the disclosing party when such requirement to disclose
arises, and shall cooperate with the disclosing party so as to enable the disclosing party to: (i) seek an appropriate protective order;
and (ii) make any applicable claim of confidentiality in respect of such Confidential Information; and provided, further, that the receiving
party shall disclose Confidential Information only to the extent required by the protective order or other similar order, if such an
order is obtained, and, if no such order is obtained, the receiving party shall disclose only the minimum amount of such Confidential
Information required to be disclosed in order to comply with the applicable law, regulation or order. In addition, any such Confidential
Information disclosed pursuant to this section shall continue to be deemed Confidential Information. Notwithstanding anything in this
Agreement to the contrary, (x) the Company shall not be obligated to provide the Investor with any information that constitutes or may
reasonably be considered to constitute material, non-public information pursuant to a request for information hereunder, and (y) the
Company and the Investor agree that (A) neither the Company nor any other Person acting on its behalf shall provide the Investor or its
agents or counsel with any information that constitutes or may reasonably be considered to constitute material, non-public information,
unless a simultaneous public announcement thereof is made by the Company in the manner contemplated by Regulation FD, and (B) in the
event the Company believes that a notice or communication to the Investor or any of its affiliates, attorneys, agents or representatives
pursuant to this Agreement or any other Transaction Document contains any material, nonpublic information, the Company shall so indicate
to the Investor prior to delivery of such notice or communication, and such indication shall provide the Investor the means to refuse
to receive such notice or communication; and in the absence of any such indication, the Investor and its affiliates, agents and representatives
shall be allowed to presume that all matters relating to such notice or communication do not constitute material, non-public information.
In the event of any breach of the foregoing covenants 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, if the Investor
is holding any Securities at the time of the disclosure of such material non-public information, the Investor 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 at least two (2) Business Days
from such notice to either publicly disclose such material, non-public information or to demonstrate to the Investor that such information
does not constitute material, non-public information, and (assuming the Investor and Investor’s counsel disagree in their reasonable
good faith judgment with the Company’s determination) prior to any such disclosure by the Investor; and the Company shall have
failed to publicly disclose such material, non-public information. The Investor shall not have any liability to the Company, any of its
Subsidiaries, or any of their respective directors, officers, employees, stockholders or agents, for any such disclosure in accordance
with this Section 5(f). The Company understands and confirms that the Investor shall be relying on the foregoing covenants in
effecting transactions in securities of the Company. The Company hereby acknowledges and agrees that, notwithstanding the provisions
of this Section 5(f), if there is a breach or violation of any representation, covenant, provision or agreement of the Company
set forth in this Section 5(f) or Section 5(a) resulting in the Investor obtaining or otherwise possessing material nonpublic
information, neither the Investor nor any of the Investor’s affiliates, attorneys, agents or representatives shall have any duty
of trust or confidence (including any obligation under any confidentiality or non-disclosure agreement entered into by the Investor with
the Company) with respect to, or obligation not to trade in any securities while aware of, such material nonpublic information.
(g) Purchase
Records. The Investor and the Company shall each maintain records showing the remaining Available Amount at any given time and the
dates and Purchase Amounts for each Regular Purchase, Accelerated Purchase and Additional Accelerated Purchase or shall use such other
method, reasonably satisfactory to the Investor and the Company.
(h) 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.
(i) Use
of Proceeds. The Company will use the net proceeds from the offering for any corporate purpose at the sole discretion of the Company.
(j) 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 Commitment
Shares to the Investor in accordance with the terms of the Transaction Documents.
(k) Aggregation.
From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company shall use its reasonable
best 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 cause this offering of the Securities by the Company to the Investor
to be aggregated with other offerings by the Company in a manner that would require stockholder approval pursuant to the rules of the
Principal Market on which any of the securities of the Company are listed or designated, unless stockholder approval is obtained before
the closing of such subsequent transaction in accordance with the rules of such Principal Market.
(l) Limitation
on Variable Rate Transactions. From and after the date of this Agreement until the twenty four (24) month anniversary of the date
of the date of this Agreement, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by
the Company or any of its Subsidiaries of Common Stock involving a Variable Rate Transaction other than with the Investor. “Variable
Rate Transaction” includes, without limitation, an “equity line of credit” or any similar transaction whereby an
investor is irrevocably bound to purchase securities over a period of time from the Company at a price based on the market price of the
Company’s Common Stock at the time of each such purchase; provided, however, that this Section 5(l) shall not be deemed to prohibit
the issuance and sale of Common Stock pursuant to an “at-the-market offering” by the Company exclusively through a registered
broker-dealer acting as agent of the Company pursuant to a written agreement between the Company and such registered broker-dealer.
| 6. | TRANSFER
AGENT INSTRUCTIONS. |
(a)
Commitment Shares. On the date of this Agreement, the Company shall issue to the Transfer Agent (and any subsequent transfer agent)
irrevocable instructions, in the form agreed to prior to the date hereof (the “Irrevocable Transfer Agent Instructions”),
to issue the Commitment Shares in accordance with the terms of this Agreement. The book-entry statement(s) representing the Commitment
Shares shall bear the following restrictive legend (the “Restrictive Legend”) and no other legend whatsoever:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The
Company warrants to the Investor that, while the Agreement is effective, no instruction other than the Irrevocable Transfer Agent Instructions
referred to in this Section 6 will be given by the Company to the Transfer Agent with respect to the Commitment Shares, and the
Commitment Shares shall otherwise be freely transferable on the books and records of the Company.
The
Company agrees that, following the effective date of the initial Registration Statement, it will, no later than two (2) Business Days
following the delivery by the Investor to the Company or the Transfer Agent of a certificate representing any Commitment Shares issued
with the Restrictive Legend (or, in the case of Commitment Shares represented by book entries, delivery by the Investor to the Company
or the Company’s transfer agent of a legend removal request) cause the Commitment Shares to be delivered to the Investor’s
or its designee’s specified Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer
(FAST) Program as DWAC Shares.
(b)
Purchase Shares. Within one (1) Business Day from the date on which the Registration Statement is declared effective by the SEC,
the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable instructions in the form agreed to
prior to the date hereof (the “Commencement Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness
of the Registration Statement in a form acceptable to the Transfer Agent (the “Notice of Effectiveness of Registration Statement”),
in each case to issue the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights Agreement. All Purchase
Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant to this Agreement shall be issued only
as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement is effective, no instruction other than
as contemplated by the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement
will be given by the Company to the Transfer Agent with respect to the Purchase Shares from and after Commencement, and no instruction
or other communication to the Transfer Agent with respect to the issuance of the Purchase Shares shall be made without the approval of
the Investor. The Company shall provide confirmation of receipt by the Transfer Agent of all instructions pursuant to the Commencement
Irrevocable Transfer Agent Instructions with respect to Purchase Shares within one (1) Business Day of delivery of any Purchase Notice.
The Purchase Shares covered by the Registration Statement shall otherwise be freely transferable on the books and records of the Company.
| 7. | CONDITIONS
TO THE COMPANY’S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK. |
The
right of the Company hereunder to commence sales of Purchase Shares is subject to the satisfaction, or where legally permissible, the
waiver of each of the following conditions:
(a) The
Investor shall have executed each of the Transaction Documents and delivered the same to the Company;
(b) The
representations and warranties of the Investor shall be true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date as though made at that
time; and
(c) The
Registration Statement covering the resale of all of the Commitment Shares and the Purchase Shares shall have been declared effective
under the Securities Act by the SEC and no stop order with respect to the Registration Statement shall be pending or threatened by the
SEC.
| 8. | CONDITIONS
TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK. |
The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction or, where legally permissible,
the waiver of each of the following conditions on or prior to the Commencement Date and, once such conditions have been initially satisfied,
there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) The
Company shall have executed each of the Transaction Documents and delivered the same to the Investor;
(b) The
Company shall have issued or caused to be issued to the Investor a number of shares of Common Stock equal to the number of Commitment
Shares, in accordance with Section 6;
(c) The
Common Stock shall be listed on the Principal Market, trading in the Common Stock shall not have been suspended by the SEC or the Principal
Market within the last 365 days, and the Company shall have filed with The Nasdaq Stock Market a Notification Form: Listing of Additional
Shares for the listing of the Securities, and Nasdaq shall have raised no objection to the consummation of the transactions contemplated
by this Agreement;
(d) The
Investor shall have received the opinion and negative assurances letter of the Company’s legal counsel dated as of the Commencement
Date substantially in the forms agreed prior to the date of this Agreement by the Company’s legal counsel and the Investor’s
legal counsel;
(e) The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date as though
made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all
material respects as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior
to the Commencement Date. The Investor shall have received a certificate, executed by the CEO, President or CFO of the Company, dated
as of the Commencement Date, to the foregoing effect in the form attached hereto as Exhibit A;
(f) The
Board of Directors of the Company shall have adopted Signing Resolutions, which shall be in full force and effect without any amendment
or supplement thereto as of the Commencement Date;
(g) As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of
effecting purchases of Purchase Shares hereunder, 1,140,477 shares of Common Stock;
(h) The
Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement, each shall have been
delivered to and acknowledged in writing by the Company and the Transfer Agent (or any successor transfer agent);
(i) The
Company shall have delivered to the Investor a certificate of good standing of the Company in the State of Delaware issued by the Secretary
of State of the State of Delaware and a certificate or its equivalent evidencing the good standing of the Company as a foreign corporation
in any other jurisdiction where the Company is duly qualified to conduct business, in each case, as of a date within ten (10) Business
Days of the Commencement Date;
(j) The
Company shall have delivered to the Investor a certified copy of the Charter as certified by the Secretary of State of the State of Delaware
within ten (10) Business Days of the Commencement Date;
(k) The
Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of the
Commencement Date, in the form attached hereto as Exhibit C;
(l) The
Registration Statement covering the resale of the Commitment Shares and Purchase Shares shall have been declared effective under the
Securities Act by the SEC and no stop order with respect to the Registration Statement shall be pending or threatened by the SEC. The
Company shall have prepared and filed with the SEC, not later than one (1) Business Day after the effective date of the Registration
Statement, 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. The Current Report shall have been filed with the SEC, as required pursuant to Section
5(a). All reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the Company
with the SEC at or prior to the Commencement Date pursuant to the reporting requirements of the Exchange Act shall have been filed with
the SEC within the applicable time periods prescribed for such filings under the Exchange Act;
(m) No
Event of Default (as defined below) shall have occurred, and no event which, after notice and/or lapse of time, would reasonably be expected
to become an Event of Default shall have occurred;
(n)
The Stockholder Approved Exchange Cap shall not have been reached (to the extent the Stockholder Approved Exchange Cap
is applicable pursuant to Section 2(d) hereof);
(o) All
federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction Documents
and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated
thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders of, and all filings
and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local regulatory or self-regulatory
agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation, in each case
those required under the Securities Act, the Exchange Act, applicable state securities or “Blue Sky” laws or applicable rules
and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities regulators;
(p) No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state or local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation
of or which would materially modify or delay any of the transactions contemplated by the Transaction Documents;
(q) No
action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental
authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors or
affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking
material damages in connection with such transactions; and
(r) The
Company shall have provided the Investor with the information requested by the Investor in connection with its due diligence requests
in accordance with the terms of Section 5(f) hereof.
In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Purchase Shares hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Investor and all of its affiliates, equityholders, members, managers, officers, directors and employees and any
of the foregoing Person’s agents or other representatives (including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions,
causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of,
or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction
Documents or any other certificate, instrument or document executed by the Company contemplated hereby or thereby, (b) any breach of
any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document
executed by the Company contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made against such Indemnitee
and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate,
instrument or document contemplated hereby or thereby, other than, in the case of clause (c) with respect to Indemnified Liabilities
which directly and primarily result from the fraud, gross negligence or willful misconduct of an Indemnitee. The indemnity in this Section
9 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, conditioned or delayed. To the extent that the foregoing undertaking by
the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. Payment under this indemnification shall be made within thirty
(30) days from the date the Investor makes written request for it. A certificate containing reasonable detail as to the amount of such
indemnification submitted to the Company by the Investor shall be conclusive evidence, absent manifest error, of the amount due from
the Company to the Investor, provided that the Indemnitee shall undertake to repay any amounts paid to it hereunder if it is ultimately
determined, by a final and non-appealable order of a court of competent jurisdiction, that the Indemnitee is not entitled to be indemnified
against such Indemnified Liabilities by the Company pursuant to this Agreement. If any action shall be brought against any Indemnitee
in respect of which indemnity may be sought pursuant to this Agreement, such Indemnitee shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnitee.
Any Indemnitee shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnitee, except to the extent that (i) the employment thereof has been
specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense
and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Company and the position of such Indemnitee, in which case the Company shall be responsible
for the reasonable fees and expenses of no more than one such separate counsel (plus local counsel). The Company shall not, without the
consent of the Indemnitee, consent to the 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 Indemnitee of a release from all liability in respect
to such claim or litigation or which includes any admission as to fault, culpability or failure to act on the part of such Indemnitee.
An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:
(a) the
effectiveness of a Registration Statement registering the sale or resale of the Securities lapses for any reason (including, without
limitation, the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof)
is unavailable to the Investor for sale or resale of any or all of the Securities to be issued to the Investor under the Transaction
Documents that are required to be included therein, and such lapse or unavailability continues for a period of ten (10) consecutive Business
Days or for more than an aggregate of thirty (30) Business Days in any 365-day period, but excluding a lapse or unavailability where
(i) the Company terminates a Registration Statement after the Investor has confirmed in writing that all of the Securities covered thereby
have been resold or (ii) the Company supersedes one Registration Statement with another Registration Statement, including (without limitation)
by terminating a prior Registration Statement when it is effectively replaced with a new Registration Statement covering Securities (provided
in the case of this clause (ii) that all of the Securities covered by the superseded (or terminated) Registration Statement that have
not theretofore been resold are included in the superseding (or new) Registration Statement);
(b) the
suspension of the Common Stock from trading on the Principal Market for a period of at least one (1) Business Day, provided that the
Company may not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c) the
delisting of the Common Stock from The NASDAQ Capital Market provided, however, that the Common Stock is not immediately thereafter trading
on The NASDAQ Global Select Market, The NASDAQ Global Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC
Bulletin Board, or the OTCQB or the OTCQX operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the
foregoing);
(d) the
failure for any reason by the Transfer Agent to issue the Purchase Shares to the Investor within two (2) Business Days after the applicable
Purchase Date, Accelerated Purchase Date or Additional Accelerated Purchase Date (as applicable) on which the Investor is entitled to
receive such Purchase Shares;
(e) the
Company breaches any representation, warranty, covenant or other term or condition under this Agreement, any other Transaction Document
or any other certificate, instrument or document executed by the Company contemplated hereby or thereby, if such breach would reasonably
be expected to have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only if
such breach continues for a period of at least five (5) Business Days;
(f) if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g) if
the Company is at any time insolvent, or, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally
unable to pay its debts as the same become due;
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders the liquidation of the
Company; or
(i) if
at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares or if the Company fails to maintain
the service of its Transfer Agent (or a successor Transfer Agent) with respect to the issuance of Purchase Shares under this Agreement,
including but not limited to, maintaining the effectiveness of the Commencement Irrevocable Transfer Instructions, payment of all fees
owed to the Transfer Agent and satisfaction of all conditions required by the Transfer Agent to issue Purchase Shares pursuant to the
Commencement Irrevocable Transfer Agent Instructions.
In
addition to any other rights and remedies under applicable law and this Agreement, so long as (i) an Event of Default has occurred and
is continuing, or if any event that, after notice and/or lapse of time, would reasonably be expected to become an Event of Default, has
occurred and is continuing [or (ii) if at any time after the Commencement Date, the Stockholder Approved Exchange Cap is reached
(to the extent the Stockholder Approved Exchange Cap is applicable pursuant to Section 2(d) hereof), the Company shall not deliver
to the Investor any Regular Purchase Notice, Accelerated Purchase Notice or Additional Accelerated Purchase Notice.
This
Agreement may be terminated only as follows:
(a) If
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 (any of which would be an Event of Default as described in Sections 10(f),
10(g) and 10(h) hereof), this Agreement shall automatically terminate without any liability or payment to the Company (except
as set forth below) without further action or notice by any Person.
(b) In
the event that the Commencement shall not have occurred on or before December 31, 2023, due to the failure to satisfy the conditions
set forth in Sections 7 and 8 above with respect to the Commencement, then this Agreement may be terminated by any party
at the close of business on December 31, 2023 or thereafter, in each case without liability of such party to the other party (except
as set forth below); provided, however, that the right to terminate this Agreement under this Section 11(b) shall not be available
to any party if such party is then in breach of any covenant or agreement contained in this Agreement or any representation or warranty
of such party contained in this Agreement fails to be true and correct such that the conditions set forth in Section 7(b) or Section
8(e), as applicable, could not then be satisfied.
(c) At
any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason by
delivering 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 (1) Business Day after it has been received by the Investor.
(d) This
Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount as provided
herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under
this Agreement (except as set forth below).
(e) If,
for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of
any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).
Except
as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f), 10(g) and 10(h)),
and 11(d), any termination of this Agreement pursuant to this Section 11 shall be effected by written notice from the Company
to the Investor, or the Investor to the Company, as the case may be, setting forth the basis for the termination hereof. The representations
and warranties and covenants of the Company and the Investor contained in Sections 3, 4, 5, and 6 hereof,
the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections 10,
11 and 12 shall survive the execution and delivery of this Agreement and any termination of this Agreement. No termination
of this Agreement shall (i) affect the Company’s or the Investor’s rights or obligations under (A) this Agreement with respect
to any pending Regular Purchases, Accelerated Purchases, or Additional Accelerated Purchases, and the Company and the Investor shall
complete their respective obligations with respect to any pending Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases under this Agreement and (B) the Registration Rights Agreement, which shall survive any such termination in accordance with
its terms, or (ii) be deemed to release the Company or the Investor from any liability for intentional misrepresentation or willful breach
of any of the Transaction Documents.
(a) Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative rights
of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation of this
Agreement and the other Transaction Documents 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. Each party hereby irrevocably submits to the exclusive
jurisdiction of and venue in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter
jurisdiction, in any state court located in the City and County of New York, for the adjudication of any dispute hereunder or under the
other Transaction Documents or in connection herewith or therewith, or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. 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.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. Signatures transmitted by Adobe
Sign, DocuSign, RightSignature, electronic mail, or other digital or electronic means will be treated as original signatures for all
purposes hereunder, each of which shall be of the same legal effect, validity, and enforceability as a manually executed signature.
(c) Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability.
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.
(e) Entire
Agreement. Except as to the Company’s obligation in respect of fees and expenses due and payable in connection with the negotiation
and entry into the Transaction Documents, which are set forth in the Term Sheet dated July 17, 2023, the Transaction Documents supersede
all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with
respect to the subject matter thereof, and this Agreement, the other Transaction Documents and the instruments referenced herein contain
the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such
matters. The Company acknowledges and agrees that it has not relied on, in any manner whatsoever, any representations or statements,
written or oral, other than as expressly set forth in the Transaction Documents. The Investor acknowledges and agrees that it has not
relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly set forth in the Transaction
Documents.
(f) Notices.
Any notices, consents 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 facsimile or 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:
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
E-mail:
jtucker@enveric.com
Attention:
Joseph Tucker, PhD, Chief Executive Officer
With
a copy to (which shall not constitute notice or service of process):
Dickinson
Wright PLLC
350
S. Main Street, Suite 300
Ann
Arbor, MI 48104
Telephone:
734-623-1905
Email:
BWyatt@dickinsonwright.com
Attention:
Bradley J. Wyatt, Esq.
If
to the Investor:
Lincoln
Park Capital Fund, LLC
440
North Wells, Suite 410
Chicago,
IL 60654
Telephone: 312-822-9300
Facsimile: 312-822-9301
E-mail: jscheinfeld@lpcfunds.com/jcope@lpcfunds.com
Attention: Josh
Scheinfeld/Jonathan Cope
With
a copy to (which shall not constitute notice or service of process):
Katten
Muchin Rosenman LLP
525
W. Monroe St.
Chicago,
IL 60661
Telephone: (312)
902-5493
E-mail:
mark.wood@katten.com
Attention: Mark
D. Wood, Esq.
If
to the Transfer Agent:
Equiniti
Trust Company, LLC
1110
Centre Pointe Curve, Suite 101,
Mendota
Heights
MN
55120-4100
Telephone:
(718) 921-8300
Attention:
EQ Shareowner Services
or
at such other address, email address and/or facsimile number 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 or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email address, as
applicable, or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or email or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii)
or (iii) above, respectively.
(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor,
including by merger or consolidation. The Investor may not assign its rights or obligations under this Agreement.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
(i) Publicity.
The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult with the Investor
and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor or its counsel
on, any press release, any Current Report on Form 8-K, or any other public disclosure by or on behalf of the Company relating to the
Investor, its purchases hereunder or any aspect to the Transaction Documents or the transactions contemplated thereby, not less than
24 hours prior to the issuance, filing or public disclosure thereof. The Investor must be provided with a final version of any such press
release, Current Report or other public disclosure at least 24 hours prior to any release, filing or use by the Company thereof.
(j) 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
consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
(k) No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Investor represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions
contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement
agent, broker or finder relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Investor
harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out of pocket expenses)
arising in connection with any such claim made by a third party for any such fees or commissions.
(l) No
Strict Construction; Rules of 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. For the purposes of this Agreement,
except to the extent that the context otherwise requires: (i) when a reference is made in this Agreement to an Article, Section, Exhibit
or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;
(ii) headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;
(iii) whenever the words “include,” “includes” or “including” (or similar terms) are used in this
Agreement, they are deemed to be followed by the words “without limitation”; (iv) the words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement; (v) the definitions contained in this Agreement are applicable to the singular as well as the
plural forms of such terms;; (vi) references to a Person are also to its permitted successors and assigns; and (vii) the use of “or”
is not intended to be exclusive unless expressly indicated otherwise.
(m) Remedies,
Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including, without limitation,
the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available to the
Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief). No remedy
of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein
shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply with the terms of this Agreement.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor and that the remedy
at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach,
the Investor shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity
of showing economic loss and without any bond or other security being required.
(n) Enforcement
Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced by the Investor
through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization, receivership
or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) subject to Section 9,
an attorney is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company
shall pay to the Investor, as incurred by the Investor, all reasonable costs and expenses including attorneys’ fees incurred in
connection therewith, in addition to all other amounts due hereunder.
(o) Amendment
and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement (i) may be amended other than by a written instrument
signed by both parties hereto and (ii) 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.
*
* * * *
IN
WITNESS WHEREOF, the Investor and the Company have caused this Purchase Agreement to be duly executed as of the date first written
above.
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ENVERIC
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THE
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LINCOLN
PARK CAPITAL FUND, LLC |
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BY:
LINCOLN PARK CAPITAL, LLC |
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BY:
ROCKLEDGE CAPITAL CORPORATION |
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EXHIBITS
Exhibit
A Form of Officer’s Certificate
Exhibit
B Form of Signing Resolutions
Exhibit
C Form of Secretary’s Certificate
EXHIBIT
A
FORM
OF OFFICER’S CERTIFICATE
This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8[●] of that certain
Purchase Agreement dated as of [●], 2023, (“Purchase Agreement”), by and between ENVERIC BIOSCIENCES, INC.,
a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The
undersigned, Dr. Joseph Tucker, Chief Executive Officer of the Company, hereby certifies, on behalf of the Company and not in his individual
capacity, as follows:
1. I
am the Chief Executive Officer of the Company;
2. The
representations and warranties of the Company contained in the Purchase Agreement are true and correct in all material respects (except
to the extent that any of such representations and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement,
in which case, such representations and warranties are true and correct without further qualification) as of the date of the Purchase
Agreement and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific
date, in which case such representations and warranties are true and correct in all material respects as of such date);
3. The
Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date, to the extent not otherwise
waived; and
4. The
Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor
does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________, 2023.
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Name: |
Joseph
Tucker |
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Title: |
Chief
Executive Officer |
The
undersigned as Secretary of ENVERIC BIOSCIENCES, INC., a Delaware corporation, hereby certifies that [●] is the duly elected,
appointed, qualified and acting Chief Executive Officer of the Company, and that the signature appearing above is his genuine signature.
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_________________,
Secretary |
EXHIBIT
B
FORM
OF COMPANY RESOLUTIONS
FOR
SIGNING PURCHASE AGREEMENT
UNANIMOUS
WRITTEN CONSENT OF
ENVERIC
BIOSCIENCES, INC.
In
accordance with the corporate laws of the state of Delaware, the undersigned, constituting all of the members of the Board of Directors
(the “Board”) of ENVERIC BIOSCIENCES, INC., a Delaware
corporation (the “Company”), hereby adopt the following resolutions by unanimous written consent and direct
that this consent be filed with the minutes of the proceedings of the Board:
Whereas,
there has been presented to the Board a draft of the Purchase Agreement (the “Purchase Agreement”) by and between
the Company and Lincoln Park Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln Park
of up to Ten Million Dollars ($10,000,000) of the Company’s common stock, $0.01 par value per share (the “Common Stock”)
and a draft of the Registration Rights Agreement (the “Registration Rights Agreement”) by and between the Company
and Lincoln Park providing for the registration of the shares of the Company’s Common Stock issuable in respect of the Purchase
Agreement on behalf of the Company; and
Whereas,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board,
the Board has determined that it is advisable and in the best interests of the Company and its stockholders to engage in the transactions
contemplated by the Purchase Agreement, including, but not limited to, the payment of $315,000 to Lincoln Park as a commitment fee in
the form of 139,403 shares of Common Stock (the “Commitment Shares”), and the sale of shares of Common Stock
to Lincoln Park up to the available amount under the Purchase Agreement (the “Purchase Shares”) and to register
such shares as contemplated by the Registration Rights Agreement.
Transaction
Documents
Now,
Therefore, Be It Resolved, that the transactions
described in the Purchase Agreement are hereby approved and each of _________ and ___________ (the “Authorized Officers”)
are severally authorized to execute and deliver the Purchase Agreement, and any other agreements or documents contemplated thereby including,
without limitation, the Registration Rights Agreement, with such amendments, changes, additions and deletions as the Authorized Officers
may deem to be appropriate and approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized
Officer thereon; and
Further
Resolved, that the terms and provisions of the Registration
Rights Agreement by and among the Company and Lincoln Park are hereby approved and the Authorized Officers are authorized to execute
and deliver the Registration Rights Agreement (pursuant to the terms of the Purchase Agreement), with such amendments, changes, additions
and deletions as the Authorized Officer may deem appropriate and approve on behalf of, the Company, such approval to be conclusively
evidenced by the signature of an Authorized Officer thereon; and
Further
Resolved, that the terms and provisions of the forms
of Irrevocable Transfer Agent Instructions, Commencement Irrevocable Transfer Agent Instructions and Notice of Effectiveness of Registration
Statement (collectively, the “Instructions”) are hereby approved and the Authorized Officers are authorized
to execute and deliver the Instructions on behalf of the Company in accordance with the Purchase Agreement, with such amendments, changes,
additions and deletions as the Authorized Officers may deem appropriate and approve on behalf of, the Company, such approval to be conclusively
evidenced by the signature of an Authorized Officer thereon; and
Execution
of Purchase Agreement
Further
Resolved, that the Company be and it hereby is authorized
to execute the Purchase Agreement providing for the purchase of up to Ten Million Dollars ($10,000,000) of the Company’s common
stock; and
Issuance
of Common Stock
Further
Resolved, that the Company is hereby authorized
to issue to Lincoln Park 139,403 shares of Common Stock as the Commitment Shares , and that upon issuance of the Commitment Shares pursuant
to the Purchase Agreement the Commitment Shares shall be duly authorized, validly issued, fully paid and nonassessable with no personal
liability attaching to the ownership thereof; and
Further
Resolved, that the Company is hereby authorized
to issue shares of Common Stock upon the purchase of Purchase Shares up to the Available Amount under the Purchase Agreement in accordance
with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares pursuant to the Purchase Agreement, the Purchase
Shares will be duly authorized, validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof;
and
Further
Resolved, that
the Company shall initially reserve [●] shares of Common Stock for issuance as Purchase Shares under the Purchase Agreement.
Filings
with the SEC
Further
Resolved, The Authorized Officers are hereby authorized,
in the name and on behalf of the Company, to prepare, execute and file, or cause to be filed, with the SEC a Registration Statement on
Form S-1 to register the offer and sale of the Purchase Shares and Commitment Shares, which Registration Statement shall be substantially
in the form previously distributed to the Board, with such changes therein, additions thereto and deletions therefrom as the Authorized
Officers, or any of them, shall approve, such approval to be conclusively evidenced by the filing thereof, and any prospectuses relating
to the sale of the Securities (including, without limitation, free writing prospectuses pursuant to Rule 433 of the Securities Act of
1933, as amended (the “Securities Act”)), any registration statement under the Securities Act relating to the registration
of additional Securities, and any amendments (including, without limitation, post-effective amendments) or supplements to such documents
as the Authorized Officers determine to be necessary or advisable, together with all documents required to be filed as exhibits and schedules
to such Registration Statement, or any amendments or supplements thereto, and all certificates, letters, instruments, applications and
other documents which may be required to be filed with the SEC with respect to the registration and offering of the Purchase Shares and
Commitment Shares (collectively, the “Registration Statement”).
Further
Resolved, that the Authorized Officers be, and each
of them hereby is, authorized and empowered, for and on behalf of the Company, to file any notifications required to be filed by the
Company with Nasdaq and the Financial Industry Regulatory Authority, Inc. as a result of the Purchase Agreement or the issuance of the
Purchase Shares and Commitment Shares and to apply to list all the Offering Shares on Nasdaq; and that the Authorized Officers be, and
each of them hereby is, authorized and empowered, for and on behalf of the Company, to cause the execution and delivery of any and all
documents, to cause the payment of all listing and related fees and to take any and all further actions they deem necessary, appropriate
or desirable to carry out the intent of the foregoing, any such determination to be conclusively evidenced by the execution and delivery
of such documents or instruments or the doing or performing of such acts or things.
Approval
of Actions
Further
Resolved, that, without limiting the foregoing,
the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on behalf of the Company and to take all
such steps as deemed necessary or appropriate, with the advice and assistance of counsel, to cause the Company to consummate the agreements
referred to herein and to perform its obligations under such agreements; and
Further
Resolved, that the Authorized Officers be, and each
of them hereby is, authorized, empowered and directed on behalf of and in the name of the Company, to take or cause to be taken all such
further actions and to execute and deliver or cause to be executed and delivered all such further agreements, amendments, documents,
certificates, reports, schedules, applications, notices, letters and undertakings and to incur and pay all such fees and expenses as
in their judgment shall be necessary, proper or desirable to carry into effect the purpose and intent of any and all of the foregoing
resolutions, and that all actions heretofore taken by any officer or director of the Company in connection with the transactions contemplated
by the agreements described herein are hereby approved, ratified and confirmed in all respects.
EXHIBIT
C
FORM
OF SECRETARY’S CERTIFICATE
This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(k) of that certain Purchase
Agreement dated as of [●], 2023 (“Purchase Agreement”), by and between ENVERIC BIOSCIENCES, INC., a Delaware
corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”), pursuant to which the
Company may sell to the Investor up to Ten Million Dollars ($10,000,000) of the Company’s Common Stock, $0.01 par value per share
(the “Common Stock”). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
The
undersigned, ______________, Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:
1. I
am the Secretary of the Company.
2. Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Amended and Restated Bylaws
(“Bylaws”) and Amended and Restated Certificate of Incorporation, as amended by a Certificate of Amendment (“Charter”),
and no action has been taken by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment
relating to or affecting the Bylaws or Charter.
3. Attached
hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company
by unanimous written consent effective as of [●], 2023. Such resolutions have not been amended, modified or rescinded and remain
in full force and effect and such resolutions are the only resolutions adopted by the Board of Directors, or any committee thereof, or
the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase Agreement, or the issuance,
offering and sale of the Purchase Shares and the Commitment Shares and (ii) and the performance of the Company of its obligation under
the Transaction Documents as contemplated therein.
4. As
of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________, 2023.
The
undersigned as Chief Executive Officer of ENVERIC BIOSCIENCES, INC., a Delaware corporation, hereby certifies that ______________
is the duly elected, appointed, qualified and acting Secretary of Enveric Biosciences, Inc., and that the signature appearing above is
his genuine signature.
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 3, 2023, is entered into by and
between ENVERIC BIOSCIENCES, INC., a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND,
LLC, an Illinois limited liability company (together with its permitted assigns, the “Investor”). Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement by and between
the parties hereto, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase
Agreement”).
WHEREAS:
A. Upon
the terms and subject to the conditions of the Purchase Agreement, (i) the Company has agreed to issue to the Investor, and the Investor
has agreed to purchase, up to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.01 per share (the “Common
Stock”), pursuant to the Purchase Agreement (such shares, the “Purchase Shares”), and (ii) the Company has
agreed to issue to the Investor such number of shares of Common Stock as is required pursuant to the Purchase Agreement (the “Commitment
Shares”); and
B. To
induce the Investor 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 Investor hereby agree as follows:
For
purposes of this Agreement, the following terms shall have the following meanings:
(a) “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 pursuant to Rule 415 under the Securities Act or
any successor rule providing for offering securities on a continuous basis (“Rule 415”), and the declaration or ordering
of effectiveness of such registration statement(s) by the U.S. Securities and Exchange Commission (the “SEC”).
(b) “Registrable
Securities” means the Purchase Shares that may from time to time be issued or issuable to the Investor upon purchases of the
Available Amount (as defined in the Purchase Agreement) under the Purchase Agreement (without regard to any limitation or restriction
on purchases), the Commitment Shares issued or issuable to the Investor, and any Common Stock issued or issuable with respect to the
Purchase Shares, the Commitment Shares or the Purchase Agreement as a result of any stock split, stock dividend, recapitalization, exchange
or similar event, without regard to any limitation on purchases under the Purchase Agreement.
(c) “Registration
Statement” means one or more registration statements of the Company covering only the resale of the Registrable Securities,
including for the avoidance of doubt, any New Registration Statement (as defined below).
(a) Mandatory
Registration. The Company shall as soon as reasonably practicable, an in any event within ten (10) Business Days of the date of
this Agreement 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 under Rule 415 under the Securities Act at then prevailing
market prices (and not fixed prices), as mutually determined by both the Company and the Investor in consultation with their
respective legal counsel, subject to the aggregate number of authorized shares of the Company’s Common Stock then available
for issuance in its Charter and the Stockholder Approved Exchange Cap (each as defined in the Purchase Agreement), provided,
however, that the Company may delay filing or suspend the use of any Registration Statement if the Company determines, upon advice
of legal counsel, that in order for the registration statement to not contain a material misstatement or omission, an amendment
thereto would be needed, or if the Company’s Board of Directors, upon advice of legal counsel, reasonably believes that such
filing or use could materially affect a bona fide business or financing transaction of the Company or would require premature
disclosure of information that could materially adversely affect the Company. The initial Registration Statement shall register only
the Registrable Securities. The Investor and its counsel shall have a reasonable opportunity to review and comment upon such
Registration Statement and any amendment or supplement to such Registration Statement and any Prospectus (as defined below) prior to
its filing with the SEC, and the Company shall give due consideration to all such comments. The Investor shall furnish all
information reasonably requested by the Company for inclusion therein. The Company shall use its commercially reasonable efforts to
have the Registration Statement and any amendment declared effective by the SEC at the earliest practicable date. The Company shall
use commercially reasonable efforts to keep the Registration Statement effective 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 on which the Investor shall have resold all the Registrable Securities covered thereby and no Available
Amount remains under the Purchase Agreement, (ii) all of the Registrable Securities may be sold by the Investor without Registration
pursuant to Rule 144 without limitation as to volume and manner of sale restrictions and no Available Amount remains under the
Purchase Agreement, (iii) six months after the termination of the Purchase Agreement, and (iv) one year after the date on which no
Available Amount remains under the Purchase Agreement (the “Registration Period”). The 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.
(b) Rule
424 Prospectus. 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, the prospectus and prospectus supplements (any such prospectus or prospectus supplement
being referred to herein as a “Prospectus”) to be used in connection with sales of the Registrable Securities under
the Registration Statement and shall provide that the Registration Statement on Form S-1 filed hereunder shall incorporate documents
by reference (including by way of forward incorporation by reference) to the maximum extent possible. Without limiting the foregoing,
so long as the Registration Statement is on Form S-1, and to the extent the Company is not otherwise able to utilize forward incorporation
by reference pursuant to Item 12(b) of Form S-1, at any time the Company files a Quarterly Report on Form 10-Q or Current Report on Form
8-K containing material information, the Company shall file a Prospectus to update the Registration Statement to include such material
information, and shall file a post-effective amendment to the Registration Statement at the time of the filing by the Company of any
Annual Report on Form 10-K. Except in the case of a Prospectus filed solely as required by the immediately preceding sentence, the Investor
and its counsel shall have a reasonable opportunity to review and comment upon any such Prospectus prior to its filing with the SEC,
and the Company shall give due consideration to all such comments. The Investor shall use its commercially reasonable efforts to comment
upon any such Prospectus within one (1) Business Day from the date the Investor receives the substantially final pre-filing version of
such Prospectus.
(c) Sufficient
Number of Shares Registered. In the event the number of shares available under the Registration Statement at any time is insufficient
to cover the Registrable Securities, the Company shall, to the extent necessary and permissible, amend the Registration Statement or
file a new registration statement (together with any Prospectuses thereunder, a “New Registration Statement”), so
as to cover all of such Registrable Securities as soon as reasonably practicable, but in any event not later than ten (10) Business Days
after the necessity therefor arises, subject to any limits that may be imposed by the SEC pursuant to Rule 415. The Company shall use
its reasonable best efforts to have such amendment and/or New Registration Statement become effective as soon as reasonably practicable
following the filing thereof.
(d) Offering.
If 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 effective and be used by the Investor under Rule 415
at then-prevailing market prices (and not fixed prices), 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 (with the prior consent, which shall not be unreasonably withheld, of the Investor and its legal counsel as to
the specific Registrable Securities to be removed therefrom) until such time as 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 until such time as all Registrable Securities have been included in Registration Statements
that have been declared effective and the Prospectuses contained therein are available for use by the Investor.
(e) Form
S-3. The Company shall use its commercially reasonable efforts to become (and thereafter remain) eligible to use Form S-3 pursuant
to General Instruction I.B.1 thereof to register the Registrable Securities for resale (the first date on which the Company becomes so
eligible pursuant to such General Instruction, the “Qualification Date”). So long as Registrable Securities remain
outstanding, promptly following the Qualification Date, but in no event more than thirty (30) days after the Qualification Date (the
“Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities
(or a post-effective amendment on Form S-3 to a registration statement on Form S-1) (a “Form S-3 Registration Statement,”
which shall constitute a New Registration Statement) and shall use commercially reasonable efforts to cause such Form S-3 Registration
Statement to be declared effective as promptly as practicable thereafter; provided that the Company shall maintain the effectiveness
of the Registration Statement then in effect until such time as a Form S-3 Registration Statement covering the Registrable Securities
has been declared effective by the SEC.
With
respect to the Registration Statement and whenever any Registrable Securities are to be Registered pursuant to Section 2, including
on the initial Registration Statement or on any New Registration Statement, the Company shall use its reasonable best 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) Notifications.
The Company will notify the Investor promptly of the time when any subsequent amendment to the initial Registration Statement or any
New Registration Statement, other than documents incorporated by reference, has been filed with the SEC and/or has become effective or
where a receipt has been issued therefor or any subsequent supplement to a Prospectus has been filed and of any request by the SEC for
any amendment or supplement to the Registration Statement, any New Registration Statement or any Prospectus or for additional information.
(b) Amendments.
The Company will prepare and file with the SEC such amendments or supplements to the initial Registration Statement, any New Registration
Statement and any Prospectus, as applicable, as may be necessary to keep the Registration Statement or any New Registration Statement
effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act in connection
with the offer, issuance and sale of the Registrable Securities.
(c) Investor
Review. The Company will not file any amendment or supplement to the Registration Statement, any New Registration Statement or any
Prospectus, other than documents incorporated by reference, relating to the Investor, the Registrable Securities or the transactions
contemplated hereby unless (A) the Investor shall have been advised and afforded the opportunity to review and comment thereon at least
two (2) Business Days prior to filing with the SEC, (B) the Company shall have given due consideration to any comments thereon received
from the Investor or its counsel, and (C) the Investor has not reasonably objected thereto (provided, however, that the failure of the
Investor to make such objection shall not relieve the Company of any obligation or liability hereunder), and the Company will furnish
to the Investor at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into
the Registration Statement or any Prospectus, except for those documents available via EDGAR.
(d)
Form S-3. Following the Company’s filing of the Form S-3 Registration Statement in accordance with Section 2(d),
the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be filed with
the SEC as required pursuant to the rules of Form S-3.
(e) Copies
Available. 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.
(f) Qualification.
The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify (i) the
issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under this Agreement and (ii) any subsequent resale
of all Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable securities or “Blue Sky”
laws of the states of the United States in such states as is reasonably requested by the Investor during the Registration Period, and
shall provide evidence of any such action so taken to the Investor. During the Registration Period, the Company shall promptly notify
the Investor 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 threat of any proceeding for such purpose.
(g) Notification
of Stop Orders; Material Changes. The Company shall advise the Investor promptly (but in no event later than 24 hours) and shall
confirm such advice in writing, in each case: (i) of the Company’s receipt of notice of any request by the SEC or any other federal
or state governmental authority for amendment of or a supplement to the Registration Statement or any Prospectus or for any additional
information; (ii) of the Company’s receipt of notice of the issuance by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending the use of any Prospectus,
or any New Registration Statement, or of the Company’s receipt of any notification of the suspension of qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation or contemplated initiation of any proceeding for such purpose;
and (iii) of the Company becoming aware of the happening of any event, which makes any statement of a material fact made in the Registration
Statement or any Prospectus untrue or which requires the making of any additions to or changes to the statements then made in the Registration
Statement or any Prospectus in order to state a material fact required by the Securities Act to be stated therein or necessary in order
to make the statements then made therein (in the case of any Prospectus, in light of the circumstances under which they were made) not
misleading, or of the necessity to amend the Registration Statement or any Prospectus to comply with the Securities Act or any other
law. If at any time the SEC, or any other federal or state governmental authority shall issue any stop order suspending the effectiveness
of the Registration Statement or prohibiting or suspending the use of any Prospectus, the Company shall use its reasonable best efforts
to obtain the withdrawal of such order at the earliest practicable time. The Company shall furnish to the Investor, without charge and
upon request, a copy of any correspondence from the SEC or the staff of the SEC, or any other federal or state governmental authority
to the Company or its representatives relating to the Registration Statement, any New Registration Statement or any Prospectus as the
case may be. The Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated Purchase Notice or Additional Accelerated
Purchase Notice, and the Investor shall not be obligated to purchase any shares of Common Stock under the Purchase Agreement, during
the continuation or pendency of any of the foregoing events. If at any time the SEC shall issue any stop order suspending the effectiveness
of the Registration Statement or prohibiting or suspending the use of any Prospectus, the Company shall use its reasonable best efforts
to obtain the withdrawal of such order at the earliest practicable time. The Company shall furnish to the Investor, without charge and
upon request, a copy of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the
Registration Statement or any Prospectus, as the case may be.
(h)
Listing on the Principal Market. The Company shall promptly secure the listing, or conditional listing as applicable, of all of
the Purchase Shares and Commitment Shares to be issued to the Investor hereunder on the Principal Market (subject to standard listing
conditions, if any, for transactions of this nature, official notice of issuance and the Stockholder Approved Exchange Cap) and
upon each other national securities exchange, automated quotation system or trading market, if any, upon which the Common Stock are then
listed, quoted or traded, and shall maintain, so long as any Common Stock shall be so listed, such listing of all such Registrable Securities
from time to time issuable hereunder. The Company shall use its commercially reasonable best efforts to maintain the listing of the Common
Stock on the Principal Market and shall comply in all respects with the Company’s reporting, filing and other obligations under
the bylaws or rules and regulations of 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 Business 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; provided, however, that the Company shall not provide the Investor copies of
any such notice that the Company reasonably believes constitutes material non-public information and that the Company would not be required
to publicly disclose such notice in any report or statement filed with the SEC under the Exchange Act (including on Form 8-K) or the
Securities Act. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 3(h).
(i) Delivery
of Shares. The Company shall cooperate with the Investor to facilitate the timely preparation and delivery of DWAC Shares (not bearing
any restrictive legend) representing the Registrable Securities to be offered pursuant to the Registration Statement or any New Registration
Statement and enable such DWAC Shares to be in such denominations or amounts as the Investor may reasonably request and registered in
such names as the Investor may request.
(j) Transfer
Agent. The Company shall at all times maintain the services of the Transfer Agent with respect to its Common Stock.
(k) Approvals.
The Company shall use its reasonable best efforts to cause the Registrable Securities covered by any Registration Statement to be Registered
with or approved by such other governmental agencies or authorities in the United States as may be necessary to consummate the disposition
of such Registrable Securities.
(l)
Post-Effective Amendments. If reasonably requested in writing by the Investor, the Company shall (i) as soon as practicable after
receipt of written notice from the Investor, incorporate in a prospectus supplement or post-effective amendment such information as the
Investor reasonably requests 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 or New Registration Statement.
(m)
Confirmation of Effectiveness. Within one (1) Business Day after any Registration Statement which includes the Registrable Securities
is ordered effective by 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) (i) confirmation that such Registration Statement has been declared
effective by the SEC in the form attached hereto as Exhibit A, or such other form acceptable to the Company’s Transfer Agent and
(ii) the Commencement Irrevocable Transfer Agent Instructions in the form agreed to prior to the date hereof. Thereafter, if requested
by the Investor at any time, the Company shall require its counsel to deliver to the Investor a written confirmation whether the Registration
Statement has been declared effective under the Securities Act and if, to its knowledge, whether a stop order suspending the effectiveness
of the Registration Statement has been issued or threatened by the SEC.
(n) Further
Assurances. The Company agrees to take all other reasonable actions as necessary and reasonably requested by the Investor to expedite
and facilitate disposition by the Investor of Registrable Securities pursuant to any Registration Statement.
(o) Suspension
of Sales. The Investor agrees that, upon receipt of any notice from the Company of the existence of any suspension or stop order
as set forth in Section 3(f) or 3(g), the Investor will immediately discontinue disposition of Registrable Securities pursuant
to any Registration Statement covering such Registrable Securities until the Investor’s receipt of the copies of a notice regarding
the resolution or withdrawal of the suspension or stop order as contemplated by Section 3(f) or 3(g). Notwithstanding anything
to the contrary, the Company shall cause its transfer agent to promptly deliver to the Investor DWAC Shares without any restrictive legend
in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which the
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 3(g) and for which the Investor has not yet settled.
| 4. | OBLIGATIONS
OF THE INVESTOR. |
(a) Investor
Information. The Investor has furnished to the Company in Exhibit B hereto such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition thereof, including any arrangement between the Investor and any other Person
relating to the sale or distribution of the Securities, as 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. The Company shall notify the Investor
in writing of any other information the Company reasonably requires from the Investor in connection with any Registration Statement hereunder.
The Investor will as promptly as practicable notify the Company of any material change in the information set forth in Exhibit B,
other than changes in its ownership of Common Stock.
(b) Investor
Cooperation. The Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation
and filing of any amendments and supplements to any Registration Statement or New Registration Statement hereunder.
| 5. | EXPENSES
OF REGISTRATION. |
All
reasonable expenses of the Company, other than sales or brokerage commissions and fees and disbursements of counsel for, and other expenses
of, the Investor, 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, shall be paid by the Company.
(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 the Investor, the members, the directors, officers, partners, equityholders, employees, members, managers, agents
and representatives of the Investor and each Person, if any, who controls the Investor within the meaning of the Securities Act or the
Exchange Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement (with the consent of the Company, such consent
not to be unreasonably withheld) or reasonable expenses, (collectively, “Claims”) reasonably 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 or body or the SEC, whether pending or threatened, whether or not an
indemnified party 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 the initial Registration Statement, any New 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 Prospectus 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 the initial Registration Statement or any New Registration Statement or
(iv) any 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
out-of-pocket 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): (A) 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 furnished in writing to the Company by the Investor or such Indemnified Person expressly for use in connection with
the preparation of the initial Registration Statement, any New Registration Statement, any Prospectus, or any such amendment thereof
or supplement thereto, if such in each case if the foregoing was timely made available by the Company; (B) with respect to use by an
Indemnified Person of 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 other Indemnified 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 (C) 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.
(b) In
connection with the initial Registration Statement, any New Registration Statement or any Prospectus, the Investor agrees to indemnify,
hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its
directors, each of its officers who signed the initial Registration Statement or signs any New Registration Statement, and each Person,
if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (collectively and together with an Indemnified
Person, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon
any Violation, in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with
written information about the Investor set forth on Exhibit B attached hereto or updated from time to time in writing by the Investor
and furnished to the Company by the Investor expressly for inclusion in the initial Registration Statement, any New Registration Statement
or any Prospectus; and, subject to Section 6(d), the Investor will reimburse any reasonable out-of-pocket legal or other expenses
reasonably incurred by them in connection with investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Investor, which
consent shall not be unreasonably withheld; provided, further, however, that the Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to the Investor as
a result of the sale of Registrable Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investor pursuant to Section 9.
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if
a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with
the fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party,
the representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due
to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall cooperate with the indemnifying party in connection with
any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which relates to such action or claim. The indemnifying party shall
keep the Indemnified Party or Indemnified Person fully apprised as to the status of the defense or any settlement negotiations with respect
thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its written consent,
provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party
shall, without the consent of the Indemnified Party or 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
Party or Indemnified Person of a release from all liability in respect to such claim or litigation or which includes any admission as
to fault, culpability or failure to act on the part of such Indemnified Party or Indemnified Person. Following indemnification as provided
for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or 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 indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the indemnifying
party is prejudiced in its ability to defend such action.
(d) 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. Any Person receiving a payment pursuant to this Section
6 which person is later determined to not be entitled to such payment shall return such payment to the person making it.
(e) The
indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right (at law or in equity) of the Indemnified
Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject
to pursuant to the law.
To
the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party 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; provided, however, that: (i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable Securities.
| 8. | REPORTS
AND DISCLOSURE UNDER THE SECURITIES ACT. |
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 public information available, as those terms are 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 so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the
applicable provisions of Rule 144;
(c)
furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon reasonable 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 reasonably requested by the Investor to enable the Investor to sell the Registrable Securities pursuant
to Rule 144, including, delivering all such legal opinions, consents, certificates, resolutions and instructions to the Company’s
Transfer Agent as may be reasonably requested from time to time by the Investor and otherwise fully cooperate with Investor and Investor’s
broker to effect such sale of securities pursuant to Rule 144; provided, however, the Investor and its broker shall cooperate with the
Company and its counsel and provide the necessary certificates, instructions and other documents reasonably requested by the Company
or its counsel in order to enable the Investor to sell the Registrable 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 seek equitable relief in the form of a preliminary or permanent
injunction, without the necessity of showing economic loss and 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 Investor; provided,
however, that any transaction, whether by merger, reorganization, restructuring, consolidation, financing or otherwise, whereby the Company
remains the surviving entity immediately after such transaction shall not be deemed an assignment. The Investor may not assign its rights
under this Agreement without the prior written consent of the Company, other than to an affiliate of the Investor controlled by Jonathan
Cope or Josh Scheinfeld, in which case the assignee must agree in writing to be bound by the terms and conditions of this Agreement.
| 10. | AMENDMENT
OF REGISTRATION RIGHTS. |
No
provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Business Day immediately
preceding the initial filing of the Registration Statement with the SEC. Subject to the immediately preceding sentence, 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.
(a) Notices.
Any notices, consents 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 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:
Enveric
Biosciences, Inc.
4851
Tamiami Trail N, Suite 200
Naples,
FL 34103
E-mail:
jtucker@enveric.com
Attention:
Joseph Tucker, PhD, Chief Executive Officer
With
a copy to (which shall not constitute notice or service of process):
Dickinson
Wright PLLC
1850
N Central Ave, Suite 1400
Phoenix,
AZ 85004
Telephone:
734-623-1905
Email:
BWyatt@dickinsonwright.com
Attention:
Bradley Wyatt, Esq.
If
to the Investor:
Lincoln
Park Capital Fund, LLC
440
North Wells, Suite 410
Chicago,
IL 60654
Telephone:
(312) 822-9300
E-mail:
jscheinfeld@lpcfunds.com/jcope@lpcfunds.com
Attention:
Josh Scheinfeld/Jonathan Cope
With
a copy to (which shall not constitute notice or service of process):
Katten
Muchin Rosenman LLP
525
W. Monroe St.
Chicago,
IL 60661
Telephone:
(312) 902-5493
E-mail:
mark.wood@katten.com
Attention:
Mark D. Wood, Esq.
If
to the Transfer Agent:
Equiniti
Trust Company, LLC
1110
Centre Pointe Curve, Suite 101,
Mendota
Heights
MN
55120-4100
Telephone:
(718) 921-8300
Attention:
EQ Shareowner Services
or
at such other address, email address and/or facsimile number 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 or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email address, as
applicable, or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or email or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii)
or (iii) above, respectively.
(b) No
Waiver 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.
(c) Governing
Law. 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. Each party hereby irrevocably submits to the exclusive jurisdiction of and venue in the U.S. District Court for the Southern
District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City and County of
New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. 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. 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.
(d) Integration.
This Agreement, the Purchase Agreement and the other Transaction Documents constitute the entire understanding 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, the Purchase Agreement and the other Transaction Documents
supersede all other prior oral or written agreements between the Investor, the Company, their affiliates and persons acting on their
behalf with respect to the subject matter hereof and thereof.
(e) No
Third Party Benefits. Subject to the requirements of Section 8, this Agreement shall inure to the benefit of and be binding
upon the permitted successors and assigns of each of the parties hereto.
(f) Headings.
The headings in this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(g) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. Signatures transmitted by Adobe
Sign, DocuSign, RightSignature, electronic mail, or other digital or electronic means will be treated as original signatures for all
purposes hereunder, each of which shall be of the same legal effect, validity, and enforceability as a manually executed signature.
(h) 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.
(i) 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. For the purposes of this Agreement, except to the
extent that the context otherwise requires: (i) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule,
such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated; (ii) headings
for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (iii)
whenever the words “include,” “includes” or “including” (or similar terms) are used in this Agreement,
they are deemed to be followed by the words “without limitation”; (iv) the words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement; (v) the definitions contained in this Agreement are applicable to the singular as well as the
plural forms of such terms; (vi) references to a Person are also to its permitted successors and assigns; and (vii) the use of “or”
is not intended to be exclusive unless expressly indicated otherwise.
(j) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as of date first written above.
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THE
COMPANY: |
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ENVERIC
BIOSCIENCES, INC. |
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By: |
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Name: |
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Title: |
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THE
INVESTOR: |
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LINCOLN
PARK CAPITAL FUND, LLC |
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BY:
LINCOLN PARK CAPITAL, LLC |
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BY:
ROCKLEDGE CAPITAL CORPORATION |
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By: |
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Name: |
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Title: |
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Exhibit
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[Date]
Equiniti
Trust Company, LLC
__________________
__________________
Re:
[__________]
Ladies
and Gentlemen:
We
are counsel to Enveric Biosciences, Inc., a Delaware corporation (the “Company”), and have represented the Company
in connection with that certain Purchase Agreement, dated as of [___________], 2023 (the “Purchase Agreement”), entered
into by and between the Company and Lincoln Park Capital Fund, LLC (the “Buyer”) pursuant to which, among other things,
the Company has agreed to issue to the Buyer shares of the Company’s Common Stock, par value $0.01 per share (the “Common
Stock”), in an amount up to Ten Million Dollars ($10,000,000) (the “Purchase Shares”), in accordance with
the terms of the Purchase Agreement. In connection with the transactions contemplated by the Purchase Agreement, the Company has registered
with the U.S. Securities and Exchange Commission (the “SEC”) [__________] shares of Common Stock that may be issued
and sold by the Company to the Buyer from time to time (the “Purchase Shares”), and 139,403 shares of Common Stock
as Commitment Shares (the “Commitment Shares”).
Pursuant
to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, dated as of [____________], 2023 with the
Buyer (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register
the Purchase Shares and the Commitment Shares under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with the Company’s obligations under the Purchase Agreement and the Registration Rights Agreement, on [_____________],
2023, the Company filed a Registration Statement [(File No. ______] (the “Registration Statement”) with the SEC relating
to the resale of the Purchase Shares and the Commitment Shares by the Buyer.
In
connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered
an order declaring the Registration Statement effective under the Securities Act at __:__ am/pm on _______ __, 2023, and we have no knowledge,
based solely on our review of the SEC’s “Stop Orders” web page (http://sec.gov/litigation/stoporders.shtml), that any
stop order suspending the Registration Statement’s effectiveness has been issued or that any proceedings for that purpose are pending
before, or threatened by, the SEC.
|
Very
truly yours, |
|
|
|
[Company
Counsel] |
|
|
|
|
By: |
|
cc: |
Lincoln
Park Capital Fund, LLC |
EXHIBIT
B
Information
About The Investor Furnished To The Company By The Investor
Expressly
For Use In Connection With Each Registration Statement and Prospectus
Information
With Respect to Lincoln Park Capital
Immediately
prior to the date of the Purchase Agreement, Lincoln Park Capital Fund, LLC, beneficially owned zero (0) shares of Common Stock. Josh
Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC, the manager of Lincoln Park Capital Fund, LLC, are deemed
to be beneficial owners of all of the Common Stock owned by Lincoln Park Capital Fund, LLC. Messrs. Cope and Scheinfeld have shared voting
and investment power over the shares being offered under the Registration Statement filed with the SEC in connection with the transactions
contemplated under the Purchase Agreement. Lincoln Park Capital, LLC is not a licensed broker dealer or an affiliate of a licensed broker
dealer.
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Enveric
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Enveric Biosciences (NASDAQ:ENVB)
過去 株価チャート
から 4 2024 まで 5 2024
Enveric Biosciences (NASDAQ:ENVB)
過去 株価チャート
から 5 2023 まで 5 2024