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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 23, 2024
CERO THERAPEUTICS HOLDINGS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-40877 |
|
87-1088814 |
(State or other jurisdiction of
incorporation or organization) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification Number) |
201 Haskins Way, Suite 230, South San Francisco, CA |
|
94080 |
(Address of principal executive offices) |
|
(Zip Code) |
(650) 407-2376
Registrant’s telephone number, including
area code
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on
which registered |
Common Stock, par value $0.0001 per share |
|
CERO |
|
NASDAQ Global Market |
Warrants, each whole warrant exercisable for one share of common stock |
|
CEROW |
|
NASDAQ Capital Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
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 February 23, 2024, CERo
Therapeutics Holdings, Inc., a Delaware corporation (the “Company”), entered into a purchase agreement (the “Purchase
Agreement”) with Arena Business Solutions Global SPC II, Ltd on behalf of and for the account of Segregated Portfolio #13 –
SPC #13 (“Arena”), pursuant to which Arena has committed to purchase up to $25 million (the “Commitment Amount”)
of the Company’s shares of common stock, par value $0.0001 per share (the “Common Stock”), subject to the satisfaction
of the conditions in the Purchase Agreement.
Such sales of Common Stock,
if any, will be subject to certain limitations, and may occur from time to time at the Company’s sole discretion over the period
commencing on the termination of the Common Stock Purchase Agreement, dated as of February 14, 2024, by and between the Company and an
institutional investor (the “Existing ELOC”), and expiring approximately 36 months following such termination, provided
that a Registration Statement (as defined below) is and remains effective, and the other conditions set forth in the Purchase Agreement
are satisfied. The Company will control the timing and amount of any sales of Common Stock to Arena. Actual sales of shares of Common
Stock to Arena under the Purchase Agreement will depend on a variety of factors to be determined by the Company from time to time, including,
among others, market conditions, the trading price of the Common Stock and determinations by the Company as to the appropriate sources
of funding and the Company’s operations.
The Company may direct Arena
to purchase amounts of its Common Stock under the Purchase Agreement that it specifies from time to time in a written notice (an “Advance
Notice”) delivered to Arena on any trading day up to the Commitment Amount. The maximum amount that the Company may specify
in any one Advance Notice is equal to the following: (A) if the Advance Notice is received by 8:30 A.M. Eastern time, then the maximum
amount that the Company may specify is equal to the lesser of (i) an amount equal to 60% of the average Daily Value Traded of the Common
Stock on the ten trading days immediately preceding such Advance Notice, or (ii) $20.0 million; and (B) if the Advance Notice is received
after 8:30 A.M. Eastern Time but prior to 10:30 A.M. Eastern Time, then the maximum amount that the Company may specify in an Advance
Notice is equal to the lesser of: (i) an amount equal to 30% of the average Daily Value Traded of the Common Stock on the ten trading
days immediately preceding such Advance Notice, or (ii) $15.0 million. For these purposes, “Daily Value Traded” is the product
obtained by multiplying the daily trading volume of our Common Stock on Nasdaq Stock Market LLC (“Nasdaq”) during regular
trading hours by the VWAP (as defined in the Purchase Agreement) for that trading day.
Under the applicable rules
of Nasdaq and the Purchase Agreement, the Company will not sell or issue to Arena shares of Common Stock, inclusive of the Commitment
Fee Shares (as defined below), in excess of 19.99% of the total number of shares of Common Stock outstanding as of the date of the Purchase
Agreement (the “Exchange Cap”), unless the Company obtains stockholder approval to issue shares of Common Stock in
excess of the Exchange Cap. In any event, the Company may not issue or sell any shares of Common Stock under the Purchase Agreement if
such issuance or sale would breach any applicable Nasdaq rules.
The Purchase Agreement also
prohibits us from directing Arena to purchase any shares of Common Stock if those shares, when aggregated with all other shares of Common
Stock then beneficially owned by Arena and its affiliates as a result of purchases under the Purchase Agreement, would result in Arena
and its affiliates having beneficial ownership of more than the 4.99% of the then-outstanding Common Stock.
The purchase price of the
shares of Common Stock will be equal to 90% of the lower of (i) the closing sale price of the Common Stock on the Pricing Period, (ii)
VWAP of the Common Stock during the Pricing Period and (iii) the arithmetic average of the three lowest closing prices of the Common Stock
during the ten consecutive trading days ending on the trading day immediately preceding the Pricing Period. The “Pricing Period”
is the trading day on which the applicable Advance Notice is delivered.
As consideration for Arena’s
irrevocable commitment to purchase Common Stock upon the terms of and subject to satisfaction of the conditions set forth in the Purchase
Agreement, the Company agreed to issue a number of shares of Common Stock (the “Commitment Fee Shares”) equal to 500,000
divided by the simple average of the daily VWAP of the Common Stock during the five trading days immediately preceding the effectiveness
of the registration statement with respect to the Existing ELOC (the “Registration Statement”). In addition, the Company
has granted Arena customary registration rights related to the shares issued under the Purchase Agreement, and has agreed to include the
resale by Arena of the Commitment Fee Shares on the Registration Statement.
The
foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Purchase
Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.
Item 3.02. Unregistered Sales of Equity Securities.
The
information provided in Item 1.01 with respect to the issuance of the Commitment Amount (including the Commitment Fee Shares) pursuant
to the Purchase Agreement is incorporated herein by reference. All such securities will not be registered under the Securities Act of
1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided by Section 4(a)(2)
of the Securities Act and/or Rule 506 of Regulation D promulgated thereunder, or under any state securities laws. The Company relied on
this exemption from registration in entering into the Purchase Agreement and the Company will rely upon this exemption from registration
in issuing such securities based in part on representations made by Arena. The securities may not be offered or sold in the United States
absent registration or an applicable exemption from registration requirements. Neither this Current Report on Form 8-K, nor the exhibits
attached hereto, is an offer to sell or the solicitation of an offer to buy the securities described herein.
Item 8.01. Other Events.
The
Company previously described its progress in an application for funding from the Cancer Focus Fund at MD Anderson, where the Company plans
to initiate its first clinical trial. In a follow-up scientific review, the fund requested information for a single technical task, and
requested that the Company reapply once these data are available. The company is undertaking the scientific work for this task and expects
to submit data from this task in the short term. The Company cannot assure its stockholders or other interested parties that it will be
successful in obtaining all or any portion of the potential grant, as the approval of such grant is subject to certain conditions, approvals
and other uncertainties.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
|
CERO THERAPEUTICS HOLDINGS, INC. |
|
|
|
|
By: |
/s/ Brian G. Atwood |
|
Name: |
Brian G. Atwood |
|
Title: |
Chief Executive Officer |
Dated: February 28, 2024
Exhibit 10.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”),
dated as of February 23, 2024, is made by and between ARENA BUSINESS SOLUTIONS
GLOBAL SPC II, LTD on behalf of and for the account of SEGREGATED PORTFOLIO #13 – SPC
#13 (the “Investor”), and CERO THERAPEUTICS HOLDINGS, INC., a Delaware corporation (the “Company”).
WHEREAS, the parties desire that, upon the
terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the Investor, from time to
time as provided herein, and the Investor shall purchase from the Company, up to $25.00 million of the Company’s shares of common
stock, par value $0.0001 per share (the “Common Shares”); and
WHEREAS, the Common Shares are listed for
trading on the Nasdaq Capital Market under the symbol “CERO”; and
WHEREAS, the offer and sale of the Common
Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “Securities Act”), or upon such other exemption from the registration requirements
of the Securities Act as may be available with respect to any or all of the transactions to be made hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS
“Advance” shall mean the portion of the Commitment
Amount requested by the Company in an Advance Notice.
“Advance Date” shall mean the 1st Trading Day after
expiration of the applicable Pricing Period for each Advance.
“Advance Halt” shall have the meaning set forth
in Section 2.05(d).
“Advance Notice” shall mean a written notice in
the form of Exhibit A attached hereto to the Investor executed by an officer of the Company or other authorized representative
of the Company identified on Schedule 1 hereto and setting forth the amount of an Advance that the Company desires to issue and sell to
the Investor.
“Advance Notice Date” shall mean each date the Company
delivers (in accordance with Section 2.02 of this Agreement) to the Investor an Advance Notice, subject to the terms of this Agreement.
“Affiliate” shall have the meaning set forth in
Section 3.07.
“Agreement” shall have the meaning set forth in
the preamble of this Agreement.
“Applicable Laws” shall mean all applicable laws,
statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having the force of law, whether local,
national, or international, as amended from time to time, including without limitation (i) all applicable laws that relate to money laundering,
terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption, books
and records and internal controls, including the United States Foreign Corrupt Practices Act of 1977, and (iii) any Sanctions laws.
“Bankruptcy Law” means Title 11, U.S. Code, or any
similar federal, state or similar laws for the relief of debtors.
“Black Out Period” shall have the meaning set forth
in Section 6.02.
“Business Day” means any day on which the Principal
Market or Trading Market is open for trading, including any day on which the Principal Market or Trading Market is open for trading for
a period of time less than the customary time.
“Buy-In” shall have the meaning set forth in Section
2.06.
“Buy-In Price” shall have the meaning set forth
in Section 2.06.
“Closing” shall have the meaning set forth in Section
2.05.
“Commitment Amount” shall mean $25.00 million of
Common Shares, provided that, the Company shall not effect any sales under this Agreement and the Investor shall not have the obligation
to purchase Common Shares under this Agreement to the extent (but only to the extent) that after giving effect to such purchase and sale
the aggregate number of Common Shares issued under this Agreement would exceed 19.99% of the outstanding Common Shares as of the date
of this Agreement (the “Exchange Cap”); provided further that, the Exchange Cap will not apply if the Company’s
stockholders have approved issuances in excess of the Exchange Cap in accordance with the rules of the Principal Market or Trading Market.
“Commitment Fee Shares” shall have the meaning set
forth in Section 13.04.
“Commitment Period” shall mean the period commencing
on the termination of the Common Stock Purchase Agreement, dated as of February 14, 2024, by and between the Company and Keystone Capital
Partners, LLC (the “Keystone ELOC”), and expiring upon the date of termination of this Agreement in accordance with
Section 11.02.
“Common Shares” shall have meaning set forth in
the recitals of this Agreement.
“Company” shall have the meaning set forth in the
preamble of this Agreement.
“Company Indemnitees” shall have the meaning set
forth in Section 5.02.
“Condition Satisfaction Date” shall have the meaning
set forth in Section 7.01.
“Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
“DTC” means the Depository Trust Company.
“DWAC Shares” means the Commitment Fee Shares or
the Common Shares acquired or purchased by the Investor pursuant to this Agreement (a) that the Investor has resold in a manner described
under the caption “Plan of Distribution” in the Registration Statement and otherwise in compliance with this Agreement before
the delivery of the Transfer Agent Confirmation regarding the resale of such Commitment Fee Shares or Common Shares (as applicable) in
accordance with this Agreement, and (b) about which the Investor has (i) delivered to the Company and the transfer agent to the Company
(A) the Transfer Agent Confirmation relating to such Commitment Fee Shares or Common Shares (as applicable) and (B) a customary representation
letter from the Investor, and, if requested by the transfer agent, its broker, confirming, among other things, the resale of such Commitment
Fee Shares or Common Shares (as applicable) in the manner described in clause (a) of this definition of DWAC Shares (including confirmation
of compliance with any relevant prospectus delivery requirements), and (ii) delivered to the transfer agent instructions for the delivery
of such Commitment Fee Shares or Common Shares (as applicable) to the account with DTC of the Investor’s designated broker-dealer
as specified in the Transfer Agent Deliverables, which Commitment Fee Shares or Common Shares (as applicable) will be in the hands of
the persons who purchase such Commitment Fee Shares or Common Shares (as applicable) from the Investor in the manner described in clause
(a) of this definition of DWAC Shares, freely tradable and transferable without restriction on resale and without stop transfer instructions
maintained against the transfer thereof.
“Environmental Laws” shall have the meaning set
forth in Section 4.08.
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Floor Price” shall mean $0.25 which shall be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, share split or other similar transaction and, effective upon the
consummation of any such reorganization, recapitalization, non-cash dividend, share split or other similar transaction, the Floor Price
shall mean the greater of (i) the adjusted price and (ii) $0.25.
“Hazardous Materials” shall have the meaning set
forth in Section 4.08.
“Indemnified Liabilities” shall have the meaning
set forth in Section 5.01.
“Investor” shall have the meaning set forth in the
preamble of this Agreement.
“Investor Indemnitees” shall have the meaning set
forth in Section 5.01.
“Market Price” shall mean the lower of: (i) the
closing sale price of the Common Shares on the Pricing Period, (ii) VWAP of the Common Shares during the Pricing Period and (iii) the
arithmetic average of the three (3) lowest closing prices of the Common Shares during the 10 consecutive Trading Days ending on the Trading
Day immediately preceding the Pricing Period.
“Material Adverse Effect” shall mean any event,
occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the legality, validity or
enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the results of operations,
assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement.
“Material Outside Event” shall have the meaning
set forth in Section 6.08.
“Maximum Advance Amount” shall be calculated as
follows: (a) if the Advance Notice is received by 8:30 a.m. Eastern Time, the lower of: (i) an amount equal to sixty percent (60%) of
the average of the Daily Value Traded of the Common Shares on the ten (10) Trading Days immediately preceding an Advance Notice, or (ii)
$20 million, and (b) if the Advance Notice is received after 8:30 a.m. Eastern Time but prior to 10:30 a.m. Eastern Time, the lower of
(i) an amount equal to thirty percent (30%) of the average of the Daily Value Traded of Common Shares on the ten (10) Trading Days immediately
preceding an Advance Notice, or (ii) $15 million. For purposes hereof, “Daily Value Traded” is the product obtained
by multiplying the daily trading volume of the Company’s Common Shares on the Principal Market or Trading Market during regular
trading hours as reported by Bloomberg L.P., by the VWAP for such Trading Day. For the avoidance of doubt, the daily trading volume shall
include all trades on the Principal Market or Trading Market during regular trading hours.
“OFAC” shall mean the U.S. Department of Treasury’s
Office of Foreign Asset Control.
“Ownership Limitation” shall have the meaning set
forth in Section 2.04(a).
“Person” shall mean an individual, a corporation,
a partnership, a limited liability company, a trust or other entity or organization, including a government or political subdivision or
an agency or instrumentality thereof.
“Plan of Distribution” shall mean the section of
a Registration Statement disclosing the plan of distribution of the Common Shares.
“Pricing Period” shall mean one (1) Trading Day,
as notified by the Company to the Investor in the applicable Advance Notice, commencing on the Advance Notice Date.
“Principal Market” shall mean the Nasdaq Global
Market.
“Purchase Price” shall mean the price per Share
obtained by multiplying the Market Price by 90%.
“Registrable Securities” shall mean (i) the Common
Shares, and (ii) any securities issued or issuable with respect to any of the foregoing by way of exchange, stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.
“Registration Limitation” shall have the meaning
set forth in Section 2.04(b).
“Registration Statement” shall mean a registration
statement on Form S-1 or Form S-3 or on such other form promulgated by the SEC for which the Company then qualifies and which counsel
for the Company shall deem appropriate, and which form shall be available for the registration of the resale by the Investor of the Registrable
Securities under the Securities Act.
“Regulation D” shall mean the provisions of Regulation
D promulgated under the Securities Act.
“Required Delivery Date” means any date on which
the Company or its transfer agent is required to deliver Common Shares to Investor hereunder.
“Sanctions” means any sanctions administered or
enforced by OFAC, the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or
other relevant sanctions authority.
“Sanctions Programs” means any OFAC economic sanction
program (including, without limitation, programs related to Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“SEC” shall mean the U.S. Securities and Exchange
Commission.
“SEC Documents” shall have the meaning set forth
in Section 4.04.
“Securities Act” shall have the meaning set forth
in the recitals of this Agreement.
“Settlement Document” shall have the meaning set
forth in Section 2.05(a).
“Shares” shall mean the Commitment Fee Shares and
the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiaries” shall have the meaning set forth
in Section 4.01.
“Trading Day” shall mean any day during which the
Principal Market or Trading Market shall be open for business.
“Trading Market” shall mean the New York Stock Exchange,
the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTCQB, the OTCBB or the NYSE
Euronext, whichever is at the time the principal trading exchange or market for the Common Shares.
“Transaction Documents” shall have the meaning set
forth in Section 4.02.
“Transfer Agent Confirmation” shall have the meaning
set forth in Section 2.05(b).
“Transfer Agent Deliverables” shall have the meaning
set forth in Section 2.05(b).
“VWAP” means, for any Trading Day, the daily volume
weighted average price of the Common Shares for such Trading Day on the Principal Market or Trading Market (a) from 9:30 a.m. Eastern
Time through 4:00 p.m. Eastern Time, excluding the opening price and the closing price, if the Advance Notice is received before 8:30
a.m. Eastern Time, and (b) from 11:00 a.m. Eastern Time through 4:00 p.m. Eastern Time, excluding the opening price and the closing price,
if the Advance Notice is received after 8:30 a.m. Eastern Time and before 10:30 a.m. Eastern Time (each, the “Measurement Period”);
provided, however for both (a) and (b) above, upon an Advance Halt the VWAP calculation shall terminate as of the effective time of the
Material Outside Event.
Article
II
ADVANCES
Section 2.01 Advances; Mechanics.
Subject to the terms and conditions of this Agreement (including, without limitation, the provisions of Article VII hereof), the
Company, so long as the Market Price is not below the Floor Price, at its sole and exclusive option, may issue and sell to the
Investor, and the Investor shall purchase from the Company, Common Shares on the following terms.
Section 2.02 Advance Notice. At any
time during the Commitment Period, so long as the Market Price is not below the Floor Price, the Company may require the Investor to
purchase Common Shares by delivering an Advance Notice to the Investor, subject to the conditions set forth in Section 7.01, and in
accordance with the following provisions:
(a) |
The Company shall, in its sole discretion, select the amount of the Advance, not to exceed the Maximum Advance Amount, it desires to issue and sell to the Investor in each Advance Notice and the time it desires to deliver each Advance Notice. |
(b) |
There shall be no mandatory minimum Advances and no non-usages fee for not utilizing the Commitment Amount or any part thereof. |
(c) |
The Company shall be limited to delivering one (1) Advance Notice to Investor per Trading Day. |
(d) |
The Advance Notice shall be valid upon delivery to Investor in accordance with Exhibit C. |
Section 2.03 Date of Delivery of Advance Notice. An
Advance Notice shall be deemed delivered on the day it is received by the Investor if such notice is received by email prior to
10:30 a.m. Eastern Time (or later if waived by the Investor in its sole discretion) in accordance with the instructions set forth on Exhibit
C.
Section 2.04 Advance Limitations. Regardless of the amount
of an Advance requested by the Company in the Advance Notice, the final amount of an Advance pursuant to an Advance Notice shall be
reduced in accordance with each of the following limitations:
(a) |
Ownership Limitation; Commitment Amount. In no event shall the number of Common Shares issuable to the Investor pursuant to an Advance cause the aggregate number of Shares beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act) by the Investor and its Affiliates as a result of previous issuances and sales of Common Shares to Investor under this Agreement to exceed 4.99% of the then outstanding Common Shares (the “Ownership Limitation”). In connection with each Advance Notice delivered by the Company, any portion of an Advance that would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Common Shares issued and sold to the Investor hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such Advance Notice shall be deemed automatically modified to reduce the amount of the Advance requested by an amount equal to such withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification, Investor will promptly notify the Company of such event. |
(b) |
Registration Limitation. In no event shall an Advance exceed the amount registered under the Registration Statement then in effect (the “Registration Limitation”) or the Exchange Cap to the extent applicable. In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation or Exchange Cap shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect of each Advance Notice; provided that in the event of any such automatic withdrawal and automatic modification, Investor will promptly notify the Company of such event. |
(c) |
Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and agree that upon the Investor’s receipt of a valid Advance Notice the parties shall be deemed to have entered into an unconditional contract binding on both parties for the purchase and sale of Common Shares pursuant to such Advance Notice in accordance with the terms of this Agreement and subject to Applicable Law and Section 3.08 (Trading Activities), the Investor may sell Common Shares during the Pricing Period. |
Section 2.05 Closings. The closing of
each Advance and each sale and purchase of Common Shares related to each Advance (each, a “Closing”) shall take
place as soon as practicable on or after each Advance Date in accordance with the procedures set forth below. The parties
acknowledge that the Purchase Price is not known at the time the Advance Notice is delivered (at which time the Investor is
irrevocably bound) but shall be determined on each Closing based on the daily prices of the Common Shares that are the inputs to the
determination of the Purchase Price as set forth further below. In connection with each Closing, the Company and the Investor shall
fulfill each of its obligations as set forth below:
(a) |
On each Advance Date, the Investor shall deliver to the Company a written document, in the form attached hereto as Exhibit B (each a “Settlement Document”), setting forth the final number of Common Shares to be purchased by the Investor (taking into account any adjustments pursuant to Section 2.04), the Market Price, the Purchase Price, the aggregate proceeds to be paid by the Investor to the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading Days during the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties), in each case in accordance with the terms and conditions of this Agreement. |
(b) |
Promptly after receipt of the Settlement Document with respect to each Advance (and, in any event, not later than two (2) Trading Days after such receipt), the Company will, or will cause its transfer agent to, issue in the Investor’s name in a DRS account or accounts at the transfer agent all Common Shares purchased by Investor pursuant to such Advance. Such Common Shares shall constitute “restricted securities” as such term is defined in Rule 144(a)(3) under the Securities Act and the certificate or book-entry statement representing such Shares shall bear the restrictive legend under the Securities Act set forth in Section 9.1(iii). Notwithstanding the foregoing, if the Investor has resold the Common Shares in a manner described under the caption “Plan of Distribution” in the Registration Statement and otherwise in compliance with this Agreement prior to the delivery by the Investor to the Company of the Settlement Document, the Investor shall concurrently with the delivery by the Investor to the Company of such Settlement Document (i) send a confirmation to the transfer agent setting forth the number of such Common Shares that have been so resold and the date of such resales (such confirmation, the “Transfer Agent Confirmation”) and (ii) deliver to the transfer agent the items set forth in clause (b) of the definition of DWAC Shares with respect to such resold Common Shares and such other items as the transfer agent may reasonably request (collectively, the “Transfer Agent Deliverables”). With respect to Common Shares or Commitment Fee Shares resold by the Investor as described in the preceding sentence and as to which the Investor has timely delivered the Transfer Agent Deliverables with respect to such resold Common Shares or Commitment Fee Shares, such securities shall be delivered and credited by the transfer agent using the Fast Automated Securities Transfer (FAST) Program maintained by DTC (or any similar program hereafter adopted by DTC performing substantially the same function) to the account with DTC of the Investor’s designated Broker-Dealer as specified in the Transfer Agent Deliverables with respect to such resold securities at the time such securities would otherwise have been required to be delivered to the Investor in accordance with this Agreement, which securities (x) shall only be used by the Investor’s Broker-Dealer to deliver such securities to DTC for the purpose of settling the Investor’s share delivery obligations with respect to the sale of such Common Shares or Commitment Fee Shares (as applicable), which may include delivery to other accounts of such Broker-Dealer and inclusion in the number of Common Shares or Commitment Fee Shares delivered by that Broker-Dealer in “net settling” that Broker-Dealer’s trading of shares of the Company’s Common Shares, including its positions with the Broker-Dealers of the respective persons who purchase such securities from the Investor, and (y) shall remain “restricted securities” as such term is defined in Rule 144(a)(3) under the Securities Act until so delivered. The Company and the Investor acknowledge that, if and when the Investor has (i) resold Commitment Fee Shares or Common Shares in a manner described under the caption “Plan of Distribution” in the Registration Statement and otherwise in compliance with this Agreement and (ii) timely delivered the Transfer Agent Deliverables with respect to such resold Commitment Fee Shares or Common Shares (as applicable), the transfer agent shall cause such resold Commitment Fee Shares or Common Shares (as applicable) to be subsequently credited using the Fast Automated Securities Transfer (FAST) Program maintained by DTC (or any similar program hereafter adopted by DTC performing substantially the same function) to the account with DTC of the Investor’s designated Broker-Dealer as specified in the Transfer Agent Deliverables with respect to such resold Commitment
Fee Shares or Common Shares (as applicable), which Commitment Fee Shares or Common Shares (as applicable) (x) shall only be used by the Investor’s Broker-Dealer to deliver such resold Commitment Fee Shares or Common Shares (as applicable) to DTC for the purpose of settling the Investor’s share delivery obligations with respect to the sale of such Common Shares or Commitment Fee Shares (as applicable), which may include delivery to other accounts of such Broker-Dealer and inclusion in the number of securities delivered by that Broker-Dealer in “net settling” that Broker-Dealer’s trading of shares of the Company’s Common Shares, including its positions with the Broker-Dealers of the respective persons who purchase such Commitment Shares or Shares (as applicable) from the Investor, and (y) shall remain “restricted securities” as such term is defined in Rule 144(a)(3) under the Securities Act until so delivered. The Company and the Investor acknowledge that such resold Commitment Fee Shares or Common Shares (as applicable) credited to the account with DTC of the Investor’s designated Broker-Dealer shall be eligible for transfer to the third-party purchasers of such Commitment Fee Shares or Common Shares or their respective Broker-Dealers as DWAC Shares. The Company and the Investor acknowledge that such resold Commitment Fee Shares or Common Shares (as applicable) credited to the account with DTC of the Investor’s designated Broker-Dealer shall be eligible for transfer to the third-party purchasers of such Commitment Fee Shares or Common Shares or their respective Broker-Dealers as DWAC Shares. The Company shall promptly notify Investor if it has reasonable grounds to dispute the calculations set forth in the Settlement Document, and the Company agrees that such calculations shall be deemed agreed upon and final upon transfer of the Common Shares. Promptly upon receipt of such notification (in any event, not later than three (3) Trading Days after such receipt), the Investor shall pay to the Company the aggregate purchase price of the Common Shares (as set forth in the Settlement Document) in cash in immediately available funds to an account designated by the Company in writing and transmit notification to the Company that such funds transfer has been requested. No fractional shares shall be issued, and any fractional amounts shall be rounded to the next higher whole number of shares. |
(c) |
On or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents, instruments and writings expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein. |
(d) |
Notwithstanding anything to the contrary in this Agreement, if on any day during the Pricing Period (i) the Company notifies Investor that a Material Outside Event set forth in Section 6.08(i) through (v) has occurred or if the Material Outside Event set forth in Sections 6.08(vi) or (vii) shall have occurred, or (ii) the Company notifies the Investor of a Black Out Period, the parties agree that the pending Advance shall end (the “Advance Halt”) and the final number of Common Shares to be purchased by the Investor at the Closing for such Advance shall be equal to the number of Common Shares sold by the Investor during the applicable Pricing Period prior to the notification from the Company of a Material Outside Event or Black Out Period. |
Section 2.06 Failure to Timely Deliver.
(a) |
If on or prior to the Required Delivery Date either (I) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company shall fail to issue and deliver a certificate to Investor and register such Common Shares on the Company’s share register or, if the transfer agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance account of Investor or Investor’s designee with DTC for the number of Common Shares to which Investor submitted for legend removal by Investor pursuant to clause (ii) below or otherwise or (II) if the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer Program, the transfer agent fails to credit the balance account of Investor or Investor’s designee with DTC for any Common Shares submitted for legend removal by Investor, in each case, if and only if the Investor has delivered the Transfer Agent Deliverables in accordance with the requirements of Section 2.05(b) above, and the Company fails to promptly, but in no event later than two (2) Business Days (x) so notify Investor and (y) deliver the Common Shares electronically without any restrictive legend in accordance with the requirements of Section 2.05(b) above, and if on or after such Trading Day Investor purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction of a sale by Investor of Common Shares submitted for legend removal by Investor that Investor is entitled to receive from the Company (a “Buy-In”), then the Company shall, within two (2) Business Days after Investor’s request and in Investor’s discretion, either (i) pay cash to Investor in an amount equal to Investor’s total purchase price (including brokerage commissions, borrow fees and other out-of-pocket expenses, if any, for the Common Shares so purchased) (the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit Investor’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to Investor a certificate or certificates or credit the balance account of Investor or Investor’s designee with DTC representing such number of Common Shares that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to Investor in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Common Shares that the Company was required to deliver to Investor by the Required Delivery Date multiplied by (B) the price at which Investor sold such Common Shares in anticipation of the Company’s timely compliance with its delivery obligations hereunder. Nothing shall limit Investor’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Common Shares (or to electronically deliver such Common Shares) as required pursuant to the terms hereof. |
(b) |
In the event the Investor sells Common Shares after receipt of an Advance Notice and the Company fails to perform its obligations as mandated in Section 2.05, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Article V hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including, without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including, without limitation, all brokerage commissions, borrow fees, legal fees and expenses and all other related out-of-pocket expenses), as incurred, arising out of or in connection with such default by the Company and acknowledges that irreparable damage may occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to specifically enforce (subject to the Securities Act and other rules of the Principal Market or Trading Market), without the posting of a bond or other security, the terms and provisions of this Agreement. |
(c) |
In the event the Company provides an Advance Notice and the Investor fails to perform its obligations as mandated in Section 2.05, the Investor agrees that in addition to and in no way limiting the rights and obligations set forth in Article V hereto and in addition to any other remedy to which the Company is entitled at law or in equity, including, without limitation, specific performance, it will hold the Company harmless against any loss, claim, damage, or expense (including, without limitation, legal fees and expenses and all other related out-of-pocket expenses), as incurred, arising out of or in connection with such default by the Investor and acknowledges that irreparable damage may occur in the event of any such default. It is accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to specifically enforce (subject to the Securities Act and other rules of the Principal Market or Trading Market), without the posting of a bond or other security, the terms and provisions of this Agreement. |
Section 2.07 Completion of Resale
Pursuant to the Registration Statement. After the Investor has purchased the full Commitment Amount and has completed the
subsequent resale of the full Commitment Amount pursuant to the Registration Statement, Investor will notify the Company that all
subsequent resales are completed and the Company will be under no further obligation to maintain the effectiveness of the
Registration Statement.
Article
III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor hereby represents and warrants to, and agrees with, the Company
that the following are true and correct as of the date hereof and as of each Advance Notice Date and each Advance Date:
Section 3.01 Organization and
Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and
has all requisite power and authority to execute, deliver and perform this Agreement, including all transactions contemplated
hereby. The decision to invest and the execution and delivery of this Agreement by the Investor, the performance by the Investor of
its obligations hereunder and the consummation by the Investor of the transactions contemplated hereby have been duly authorized and
require no other proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver
this Agreement and all other instruments on behalf of the Investor or its shareholders. This Agreement has been duly executed and
delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company, will constitute the
legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section 3.02 Evaluation of Risks. The
Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the merits and
risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and of protecting its
interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the
Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 3.03 No Legal, Investment or Tax Advice from the
Company. The Investor acknowledges that it had the opportunity to review this Agreement and the transactions contemplated by
this Agreement with its own legal counsel and investment and tax advisors. The Investor is relying solely on such counsel and
advisors and not on any statements or representations of the Company or any of the Company’s representatives or agents for
legal, tax, investment or other advice with respect to the Investor’s acquisition of Common Shares hereunder, the transactions
contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose all or a
part of its investment.
Section 3.04 Investment Purpose. The
Investor is acquiring the Common Shares for its own account, for investment purposes and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration
requirements of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree, or
make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with, or pursuant to, a registration statement filed pursuant to this Agreement
or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly
or indirectly, with any Person to sell or distribute any of the Common Shares. The Investor acknowledges that it will be disclosed
as an “underwriter” and a “selling stockholder” in each Registration Statement and in any prospectus
contained therein.
Section 3.05. Accredited Investor. The
Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D.
Section 3.06 Information. The
Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and
operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and
its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and
have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such
Investor or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right
to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that
the Company has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and
warranties of the Company, its employees or any third party other than the representations and warranties of the Company contained
in this Agreement. The Investor understands that its investment involves a high degree of risk. The Investor has sought such
accounting, legal and tax advice, as it has considered necessary to make an informed investment decision with respect to the
transactions contemplated hereby.
Section 3.07 Not an Affiliate. The
Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with the Company or any “affiliate” of the Company (as that term is defined in
Rule 405 promulgated under the Securities Act).
Section 3.08 Trading Activities. The
Investor’s trading activities with respect to the Common Shares shall be in compliance with all applicable federal and state
securities laws, rules and regulations and the rules and regulations of the Principal Market or Trading Market. Neither the Investor
nor its affiliates has any open short position in the Common Shares, nor has the Investor entered into any hedging transaction that
establishes a net short position with respect to the Common Shares, and the Investor agrees that it shall not, and that it will
cause its affiliates not to, engage in any short sales or hedging transactions with respect to the Common Shares; provided that the
Company acknowledges and agrees that upon receipt of an Advance Notice the Investor has the right to sell (a) the Common Shares to
be issued to the Investor pursuant to the Advance Notice prior to receiving such Common Shares, or (b) other Common Shares issued or
sold by the Company to Investor pursuant to this Agreement and which the Company has continuously held as a long position.
Section 3.09 General Solicitation. Neither the Investor,
nor any of its affiliates, nor any person acting on its or their behalf, has engaged or will engage in any form of general solicitation
or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Common Shares by the Investor.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Documents, or in the Disclosure Schedules,
which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the
extent of the disclosure contained in the corresponding section of the Disclosure Schedules or in another Section of the Disclosure Schedules,
to the extent that it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such Section, the Company
represents and warrants to the Investor that, as of the date hereof and each Advance Notice Date (other than representations and warranties
which address matters only as of a certain date, which shall be true and correct as written as of such certain date), that:
Section 4.01 Organization and
Qualification. Each of the Company and its Subsidiaries (as defined below) is an entity duly organized and validly existing
under the laws of its state of organization or incorporation, and has the requisite power and authority to own its properties and to
carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified to do business and is in
good standing (to the extent applicable) in every jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material
Adverse Effect. The Company’s Subsidiaries means any Person (as defined below) in which the Company, directly or indirectly,
(x) owns a majority of the outstanding capital stock or equity or similar interests of such Person or (y) controls or operates all
or any part of the business, operations or administration of such Person provided that such Subsidiary is set forth on Schedule
4.01.
Section 4.02 Authorization, Enforcement,
Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform its
obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance with the terms hereof and
thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares)
have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further consent
or authorization will be required by the Company, its board of directors or its shareholders (except as otherwise contemplated by
this Agreement). This Agreement and the other Transaction Documents to which it is a party have been (or, when executed and
delivered, will be) duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by
the Investor, constitute (or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and
to contribution may be limited by federal or state securities law. “Transaction Documents” means, collectively,
this Agreement and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection
with the transactions contemplated hereby and thereby, as may be amended from time to time.
Section 4.03 No Conflict. 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 issuance of the Common Shares) will not (i) result
in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with respect
to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated),
(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 its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any
property or asset of the Company or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the
extent such violations or conflicts would not reasonably be expected to have a Material Adverse Effect.
Section 4.04 SEC Documents; Financial
Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the Exchange Act for the two years preceding the date hereof (or such shorter period as the Company was required
by law or regulation to file such material) (all of the foregoing filed within the past two years preceding the date hereof or
amended after the date hereof, or filed after the date hereof, and all exhibits included therein and financial statements and
schedules thereto and documents incorporated by reference therein, and all registration statements filed by the Company under the
Securities Act, being hereinafter referred to as the “SEC Documents”). The Company has made available to the
Investor through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, and none of the SEC
Documents, when viewed as a whole as of the date hereof, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. As of their respective dates (or, with respect to any filing that has been amended or
superseded, the date of such amendment or superseding filing), the SEC Documents complied in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents. As of their respective dates (or, with respect to any financial statements that have
been amended or superseded, the date of such amended or superseding financial statements), the financial statements of the Company
included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the
Company as of the respective dates thereof and the results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit adjustments).
Section 4.05 Equity Capitalization. As of the date hereof,
the authorized capital of the Company consists of (A) 1,000,000,000 Common Shares, of which, 14,906,846 are issued and outstanding
and 9,575,153 shares are reserved for issuance pursuant to Convertible Securities (as defined below) exercisable or exchangeable
for, or convertible into, Common Shares and (B) 10,000,000 shares of preferred stock, par value $0.0001 per share, of which none are
issued and outstanding. No Common Shares are held in the treasury of the Company. “Convertible Securities” means any
capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly
or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any
capital stock or other security of the Company (including, without limitation, Common Shares) or any of its Subsidiaries.
Section 4.06 Intellectual Property
Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service
marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except as would
not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by the
Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, or trade secrets. To the knowledge of the Company, there is no claim, action or
proceeding being made or brought against, or to the Company’s knowledge, being threatened against the Company or its
Subsidiaries regarding any material trademark, trade name, patents, patent rights, invention, copyright, license, service names,
service marks, service mark registrations, trade secret or other infringement; and the Company is not aware of any facts or
circumstances which might give rise to any of the foregoing.
Section 4.07 Employee Relations.
Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company or any of its
Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse Effect.
Section 4.08 Environmental Laws. The Company and its
Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects with all Environmental
Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure to comply with all terms
and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure to
so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term
“Environmental Laws” means all applicable federal, state and local laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into
the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section 4.09 Title. Except as would
not cause a Material Adverse Effect, the Company (or its Subsidiaries) have indefeasible fee simple or leasehold title to its
properties and assets owned by it, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest.
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 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.
Section 4.10 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. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
Section 4.11 Regulatory Permits.
Except as would not cause a Material Adverse Effect or as set forth on Schedule 4.11, the Company and its Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities
necessary to own their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of
proceedings relating to the revocation or modification of any such certificate, authorization or permits.
Section 4.12 Internal Accounting Controls. The Company
maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and management
is not aware of any material weaknesses that are not disclosed in the SEC Documents as and when required.
Section 4.13 Absence of Litigation. Except with respect
to receipt of deficiency notices relating to Nasdaq delisting, which have been 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
against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries, wherein an unfavorable decision, ruling
or finding would have a Material Adverse Effect.
Section 4.14 Subsidiaries. As of
the date hereof, except as set forth on Schedule 4.14,
the Company does not own or control, directly or indirectly, any interest in any other corporation, partnership, association or other
business entity, except for the Subsidiaries and Excluded Subsidiaries.
Section 4.15 Tax Status. Except as would not have a Material
Adverse Effect, each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely 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 (iii) 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. The Company has not received written notification any
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and
its Subsidiaries know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section 4.16 Certain Transactions. Except as (i) set forth
in the SEC Documents or (ii) not required to be disclosed pursuant to Applicable Law (including, for the avoidance of doubt, not yet required
to be disclosed at the relevant time), none of the officers or directors of the Company is presently a party to any transaction with the
Company (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments
to or from any officer or director, or to the knowledge of the Company, any corporation, partnership, trust or other entity in which any
officer or director has a substantial interest or is an officer, director, trustee or partner.
Section 4.17 Rights of First Refusal. Except as set forth
on Schedule 4.17, the Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal basis or otherwise
to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other
third parties.
Section 4.18 Dilution. The Company is aware and acknowledges
that the issuance of Common Shares hereunder could cause dilution to existing shareholders and could significantly increase the outstanding
number of Common Shares.
Section 4.19 Acknowledgment Regarding Investor’s Purchase
of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s length investor
with respect to this Agreement and the transactions contemplated hereunder. 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 this Agreement and the transactions
contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection with this Agreement
and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Shares hereunder. The Company
is aware and acknowledges that it shall not be able to request Advances under this Agreement if the Registration Statement is not effective
or if any issuances of Common Shares pursuant to any Advances would violate any rules of the Principal Market or Trading Market.
Section 4.20 Sanctions Matters.
Neither the Company, nor any Subsidiary of the Company, nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary of the Company, is a Person that is, or is owned or controlled by a Person
that is on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time;
(a) |
the subject of any Sanctions; or |
(b) |
has a place of business in, or is operating, organized, resident or doing business in a country or territory that is, or whose government is, the subject of Sanctions Programs (including without limitation Crimea, Cuba, Iran, North Korea, Sudan and Syria). |
Section 4.21 DTC Eligibility. The Company, through the
transfer agent, currently participates in the DTC Fast Automated Securities Transfer (FAST) Program and the Common Shares can be transferred
electronically to third parties via the DTC Fast Automated Securities Transfer (FAST) Program.
Article
V
INDEMNIFICATION
The Investor and the Company represent to the other the following with
respect to itself:
Section 5.01 Indemnification by the Company. In consideration
of the Investor’s execution and delivery of this Agreement, and in addition to all of the Company’s other obligations under
this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor, its investment manager, and each of their
respective officers, directors, managers, members, partners, employees and agents (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and
all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses
in connection therewith (irrespective of whether any such Investor 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 the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any
amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor
specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty made
by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material
breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable
under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities,
which is permissible under Applicable Law.
Section 5.02 Indemnification by the Investor. In consideration
of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s other obligations under
this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company and all of its officers, directors, shareholders,
employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement)
and each person who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively,
the “Company Indemnitees”) from and against any and all Indemnified Liabilities incurred by the Company Indemnitees
or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any
related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however,
that the Investor will only be liable for written information relating to the Investor furnished to the Company by or on behalf of the
Investor specifically for inclusion in the documents referred to in the foregoing indemnity, and will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Investor by
or on behalf of the Company specifically for inclusion therein; (b) any misrepresentation or breach of any representation or warranty
made by the Investor in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any
breach of any covenant, agreement or obligation of the Investor(s) contained in this Agreement or any other certificate, instrument or
document contemplated hereby or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be
unenforceable under Applicable Law, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities, which is permissible under Applicable Law.
Section 5.03 Notice of Claim. Promptly after receipt by
an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding (including any governmental action
or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee, as applicable, shall, if a claim for
an Indemnified Liability in respect thereof is to be made against any indemnifying party under this Article V, deliver to the indemnifying
party a written notice of the commencement thereof; but the failure to so notify the indemnifying party will not relieve it of liability
under this Article V except to the extent the indemnifying party is prejudiced by such failure. 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 reasonably satisfactory to the indemnifying party and the Investor Indemnitee
or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee or Company Indemnitee shall have the right to
retain its own counsel with the actual and reasonable third party fees and expenses of not more than one counsel for such Investor Indemnitee
or Company Indemnitee 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 Investor Indemnitee or Company Indemnitee and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Investor Indemnitee or Company Indemnitee and any other party represented
by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate fully 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 Investor Indemnitee or Company Indemnitee which relates to such action or claim. The
indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably 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 prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition
its consent. No indemnifying party shall, without the prior written consent of the Investor Indemnitee or Company Indemnitee, 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 Investor Indemnitee or Company Indemnitee of a release from all liability in respect to such
claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of
the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations relating to the matter for which
indemnification has been made. The indemnification required by this Article V shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are received and payment therefor is due, subject to receipt by the
indemnifying party of an undertaking to repay any amounts that such party is ultimately not entitled to receive as indemnification pursuant
to this Agreement.
Section 5.04 Remedies. The remedies provided for in this
Article V are not exclusive and shall not limit any right or remedy which may be available to any indemnified person at law or equity.
The obligations of the parties to indemnify or make contribution under this Article V shall survive expiration or termination of this
Agreement.
Section 5.05 Limitation of Liability. Notwithstanding
the foregoing, no party shall be entitled to recover from the other party for punitive, indirect, incidental or consequential damages.
Article
VI
COVENANTS
Section 6.01 Registration Statement.
(a) |
Filing of a Registration Statement. No later than ten (10) calendar days following the Trigger Date (as defined below), the Company shall have prepared and filed with the SEC a Registration Statement for the resale by the Investor of Registrable Securities and shall file one or more additional Registration Statements for the resale by Investor of Registrable Securities if necessary. The Company acknowledges and agrees that it shall not have the ability to request any Advances until the effectiveness of a Registration Statement registering the applicable Registrable Securities for resale by the Investor. “Trigger Date” means the date upon which the Keystone ELOC has been terminated. |
(b) |
Maintaining a Registration Statement. The Company shall use commercially reasonable efforts to maintain the effectiveness of any Registration Statement that has been declared effective at all times during the Commitment Period, provided, however, that if the Company has received notification pursuant to Section 2.07 that the Investor has completed resales pursuant to the Registration Statement for the full Commitment Amount, then the Company shall be under no further obligation to maintain the effectiveness of the Registration Statement. Notwithstanding anything to the contrary contained in this Agreement, the Company shall use commercially reasonable efforts to ensure that, when filed, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement 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 the case of prospectuses, in the light of the circumstances in which they were made) not misleading. During the Commitment Period, the Company shall notify the Investor promptly if (i) the Registration Statement shall cease to be effective under the Securities Act, (ii) the Common Shares shall cease to be authorized for listing on the Principal Market or Trading Market, (iii) the Common Shares cease to be registered under Section 12(b) or Section 12(g) of the Exchange Act or (iv) the Company fails to file in a timely manner all reports and other documents required of it as a reporting company under the Exchange Act. |
| (c) | Filing
Procedures. Not less than one business day prior to the filing of a Registration Statement
and not less than one business day prior to the filing of any related amendments and supplements
to any Registration Statements (except for any amendments or supplements caused by the filing
of any annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form
8-K, and any similar or successor reports), the Company shall furnish to the Investor copies
of all such documents proposed to be filed, which documents (other than those filed pursuant
to Rule 424 promulgated under the Securities Act) will be subject to the reasonable and prompt
review of the Investor (in each of which cases, if such document contains material non-public
information as consented to by the Investor pursuant to Section 6.13, the information provided
to Investor will be kept strictly confidential until filed and treated as subject to Section
6.08). The Investor shall furnish comments on a Registration Statement and any related amendment
and supplement to a Registration Statement to the Company within 24 hours of the receipt
thereof. If the Investor fails to provide comments to the Company within such 24-hour period,
then the Registration Statement, related amendment or related supplement, as applicable,
shall be deemed accepted by the Investor in the form originally delivered by the Company
to the Investor. |
| (d) | Delivery
of Final Documents. The Company shall furnish to the Investor without charge, (i) at
least one copy of each Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents incorporated therein
by reference, all exhibits and each preliminary prospectus, (ii) at the request of the Investor,
at least one copy of the final 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 as the Investor may reasonably request from time
to time in order to facilitate the disposition of the Common Shares owned by the Investor
pursuant to a Registration Statement. Filing of the forgoing with the SEC via its EDGAR system
shall satisfy the requirements of this section. |
| (e) | Amendments
and Other Filings. The Company shall use commercially reasonable efforts to (i) prepare
and file with the SEC such amendments (including post-effective amendments) and supplements
to a Registration Statement and the related prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities
Act, as may be necessary to keep such Registration Statement effective at all times during
the Commitment Period, and prepare and file with the SEC such additional Registration Statements
in order to register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related prospectus to be amended or supplemented by any required prospectus
supplement (subject to the terms of this Agreement), and as so supplemented or amended to
be filed pursuant to Rule 424 promulgated under the Securities Act; (iii) provide the Investor
copies of all correspondence from and to the SEC relating to a Registration Statement (provided
that the Company may excise any information contained therein which would constitute material
non-public information), and (iv) comply with the provisions of the Securities Act with respect
to the disposition of all Common Shares of the Company covered by such Registration Statement
until such time as all of such Common Shares shall have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof as set forth in such
Registration Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to this Section
6.01(e)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form
8-K or any analogous report under the Exchange Act, the Company shall use commercially reasonable
efforts to file such report in a prospectus supplement filed pursuant to Rule 424 promulgated
under the Securities Act to incorporate such filing into the Registration Statement, if applicable,
or shall file such amendments or supplements with the SEC either on the day on which the
Exchange Act report is filed which created the requirement for the Company to amend or supplement
the Registration Statement, if feasible, or otherwise promptly thereafter. |
| (f) | Blue-Sky.
The Company shall use its commercially reasonable efforts to, if required by Applicable Law,
(i) register and qualify the Common Shares covered by a Registration Statement under such
other securities or “blue sky” laws of such jurisdictions in the United States
as the Investor reasonably requests, (ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations and qualifications
as may be necessary to maintain the effectiveness thereof during the Commitment Period, (iii)
take such other actions as may be necessary to maintain such registrations and qualifications
in effect at all times during the Commitment Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Common Shares for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or as a condition
thereto to (w) make any change to its articles of incorporation or bylaws, (x) qualify to
do business in any jurisdiction where it would not otherwise be required to qualify but for
this Section 6.01(f), (y) subject itself to general taxation in any such jurisdiction, or
(z) file a general consent to service of process in any such jurisdiction. The Company shall
promptly notify the Investor of the receipt by the Company of any notification with respect
to the suspension of the registration or qualification of any of the Common Shares 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. |
Section
6.02 Suspension of Registration Statement.
| (a) | Establishment
of a Black Out Period. During the Commitment Period, the Company from time to time may
suspend the use of the Registration Statement by written notice to the Investor in the event
that the Company determines in its sole discretion in good faith that such suspension is
necessary to (A) delay the disclosure of material nonpublic information concerning the Company,
the disclosure of which at the time is not, in the good faith opinion of the Company, in
the best interests of the Company or (B) amend or supplement the Registration Statement or
prospectus so that such Registration Statement or prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading (a “Black Out Period”). |
| (b) | No
Sales by Investor During the Black Out Period. During such Black Out Period, the Investor
agrees not to sell any Common Shares of the Company. |
| (c) | Limitations
on the Black Out Period. The Company shall not impose any Black Out Period that is longer
than 60 days or in a manner that is more restrictive (including, without limitation, as to
duration) than the comparable restrictions that the Company may impose on transfers of the
Company’s equity securities by its directors and senior executive officers. In addition,
the Company shall not deliver any Advance Notice during any Black Out Period. If the public
announcement of such material, nonpublic information is made during a Black Out Period, the
Black Out Period shall terminate immediately after such announcement, and the Company shall
immediately notify the Investor of the termination of the Black Out Period. |
Section
6.03 Listing of Common Shares. As of each Advance Date, the Shares to be sold by the Company from time to time hereunder will
have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market or Trading Market, subject
to official notice of issuance.
Section
6.04 Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have
received an opinion letter and negative assurances letter from counsel to the Company in form and substance reasonably satisfactory to
the Investor.
Section
6.05 Exchange Act Registration. The Company will use commercially reasonable efforts to file in a timely manner all reports
and other documents required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether
or not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange
Act.
Section
6.06 Transfer Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the
Company shall (if required by the transfer agent for the Common Shares) cause legal counsel for the Company to deliver to the transfer
agent for the Common Shares (with a copy to the Investor) instructions to issue Common Shares to the Investor free of restrictive legends
upon each Advance if the delivery of such instructions are consistent with Applicable Law and the Investor has provided the Transfer
Agent Deliverables with respect to such Common Shares required by this Agreement.
Section
6.07 Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence
of the Company during the Commitment Period.
Section
6.08 Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify
the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration
Statement or related prospectus relating to an offering of Common Shares (in each of which cases the information provided to Investor
will be kept strictly confidential): (i) except for requests made in connection with SEC or other Federal or state governmental authority
investigations disclosed in the SEC Documents, receipt of any request for additional information by the SEC or any other Federal or state
governmental authority during the period of effectiveness of the Registration Statement or any request for amendments or supplements
to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other Federal governmental authority of any
stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Common Shares for
sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (iv) the happening of any event that
makes any statement made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related
prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that
in the case of the related prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or of the necessity to amend the Registration Statement or supplement a related prospectus to comply with the Securities
Act or any other law; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement
would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
The Company shall not deliver to the Investor any Advance Notice, and the Company shall not sell any Shares pursuant any pending Advance
Notice (other than as required pursuant to Section 2.05(d)), during the continuation of any of the foregoing events in clauses (i) through
(v) above, or in the event that (vi) there shall be no bid for the Common Shares on the Principal Market or Trading Market for a period
of 15 consecutive minutes at any time during the applicable Pricing Period or (vii) there shall be a “trading halt” or “circuit
breaker” event with respect to the Common Shares on the Principal Market or Trading Market during the applicable Pricing Period
(each of the events described in the immediately preceding clauses (i) through (vii), inclusive, a “Material Outside Event”).
Section
6.09 Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation
of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction
contemplated in such Advance Notice has been closed in accordance with Section 2.05 hereof, and all Shares in connection with such Advance
have been received by the Investor.
Section
6.10 Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares hereunder shall be made in accordance
with the provisions and requirements of Section 4(a)(2) of the Securities Act or Regulation D under the Securities Act and any applicable
state securities law.
Section
6.11 Market Activities. The Company will not, directly or indirectly, take any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company
under Regulation M of the Exchange Act.
Section
6.12 Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing
and filing of the Registration Statement and each amendment and supplement thereto, of each prospectus and of each amendment and supplement
thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all reasonable fees and disbursements
of the Company’s counsel, accountants and other advisors, (iv) the qualification of the Shares under securities laws in accordance
with the provisions of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any
prospectus and any amendments or supplements thereto, (vi) the fees and expenses incurred in connection with the listing or qualification
of the Shares for trading on the Principal Market or Trading Market, or (vii) filing fees of the SEC and the Principal Market or Trading
Market.
Section
6.13 Current Report. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their
respective officers, directors, employees and agents not to, provide the Investor with any material, non-public information regarding
the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in
the Investor’s sole discretion and must include an agreement to keep such information confidential until publicly disclosed or
45 days have passed); it being understood that the mere notification of Investor required pursuant to Section 6.08(iv) hereof shall not
in and of itself be deemed to be material non-public information. Notwithstanding anything contained in this Agreement to the contrary,
the Company expressly agrees that it shall use its commercial reasonable efforts to publicly disclose, no later than 45 days following
the date hereof, but in any event prior to delivering the first Advance Notice hereunder, any information communicated to the Investor
by or, to the knowledge of the Company, on behalf of the Company in connection with the transactions contemplated herein, which, following
the date hereof would, if not so disclosed, constitute material, non-public information regarding the Company or its Subsidiaries.
Section
6.14 Advance Notice Limitation. The Company shall not deliver an Advance Notice if a shareholder meeting or corporate action
date, or the record date for any shareholder meeting or any corporate action, would fall during the period beginning two Trading Days
prior to the date of delivery of such Advance Notice and ending two Trading Days following the Closing of such Advance.
Section
6.15 Use of Proceeds. The Company will use the proceeds from the sale of the Common Shares hereunder for working capital and
other general corporate purposes or, if different, in a manner consistent with the application thereof described in the Registration
Statement. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein,
or lend, contribute, facilitate or otherwise make available such proceeds to any Person (i) to fund, either directly or indirectly, any
activities or business of or with any Person that is identified on the list of Specially Designated Nationals and Blocker Persons maintained
by OFAC, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or Sanctions
Programs, or (ii) in any other manner that will result in a violation of Sanctions.
Section
6.16 Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section
6.17 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 commercially reasonable efforts to ensure that no Person acting on their behalf will, directly or indirectly, make
any offers or sales of any security or solicit any offers to buy any security, under circumstances that would 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 shareholder
approval pursuant to the rules of the Principal Market or Trading Market on which any of the securities of the Company are listed or
designated, unless shareholder approval is obtained before the closing of such subsequent transaction in accordance with the rules of
such Principal Market or Trading Market.
Section
6.18 Other Transactions. The Company shall not enter into, announce or recommend to its shareholders 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 Shares to the Investor in accordance with the terms of the Transaction Documents.
Section
6.19 Integration. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the
Company shall use its commercially reasonable efforts to ensure that no Person acting on their behalf will, directly or indirectly, make
any offers or sales of any security or solicit any offers to buy any security, under circumstances that would require registration of
the offer and sale of any of the Securities under the Securities Act.
Section
6.20 Limitation on Variable Rate Transactions. From the date hereof until the earlier of (x) any Termination hereunder pursuant
to Section 11.02(a) or (y) thirty (30) days after any Termination hereunder pursuant to Section 11.02(b) (the “Limitation Date”),
the Company shall be prohibited from effecting or entering into an “at-the-market” offering with a bona-fide registered broker
dealer; provided, however, that the Company may enter into such “at-the-market” offering prior to the Limitation Date if
the Company promptly pays to the investor a $100,000 fee prior to execution of any term sheet or definitive purchase agreement for such
“at-the-market” offering.
Section
6.21 DTC. The Company shall take all action reasonably required to ensure that its Common Shares can be transferred electronically
as DWAC Shares if the Transfer Agent Deliverables with respect to such Common Shares have been provided by the Investor.
Section
6.22 Non-Public Information. 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 in full compliance with applicable securities laws; provided, however that a party may disclose Confidential Information
that is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written
notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
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 Company confirms
that neither it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any information that
constitutes material, non-public information, unless a simultaneous public announcement thereof is made by the Company in the manner
contemplated by Regulation FD under the Exchange Act. In the event of a breach of the foregoing covenant by the Company or any Person
acting on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any other remedy provided
herein or in the other Transaction Documents, the Investor 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,
the Company shall have at least twenty-four (24) hours to publicly disclose such material, non-public information prior to any such disclosure
by the Investor, and the Company shall have failed to publicly disclose such material, non-public information within such time period.
The Investor shall not have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees,
shareholders or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing
covenants in effecting transactions in securities of the Company.
Section
6.23 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, representatives 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 Shares (excluding transactions properly marked “short exempt”)
or (ii) hedging transaction, which establishes a net short position with respect to the Common Shares.
Section
6.24 Use of Name. The Company shall not, directly or indirectly, use the names “Arena Business Solutions Global”, “Arena
Business Results”, “Arena Management Company, LLC”, “Arena Finance Company, LLC”, or “Arena”,
or any derivations thereof, or logos associated with these names, as the case may be, in any manner or take any action that may imply
any relationship with the Investor or any of its Affiliates without the prior written consent of the Investor, provided, however, the
Investor hereby consents to all lawful uses of these names in the prospectus, statement and other materials that are required by applicable
laws or pursuant to the disclosure requirements of the SEC or any state securities authority.
Article
VII
CONDITIONS FOR DELIVERY OF ADVANCE NOTICE
Section
7.01 Conditions Precedent to the Right of the Company to Deliver an Advance Notice. The right of the Company to deliver an
Advance Notice and the obligations of the Investor hereunder with respect to an Advance is subject to:
| (a) | the
satisfaction by the Company, on each Advance Notice Date (a “Condition Satisfaction
Date”), of each of the following conditions: |
| (b) | Accuracy
of the Company’s Representations and Warranties. The representations and warranties
of the Company in this Agreement shall be true and correct in all material respects. |
| (c) | Registration
of the Common Shares with the SEC. There is an effective Registration Statement pursuant
to which the Investor is permitted to utilize the prospectus thereunder to resell all of
the Commitment Fee Shares and Common Shares issuable pursuant to such Advance Notice. The
Company shall have filed with the SEC all reports, notices and other documents required under
the Exchange Act and applicable SEC regulations during the twelve-month period immediately
preceding the applicable Condition Satisfaction Date. |
| (d) | Authority.
The Company shall have obtained all permits and qualifications required by any applicable
state for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice,
or shall have the availability of exemptions therefrom. The sale and issuance of such Common
Shares shall be legally permitted by all laws and regulations to which the Company is subject. |
| (e) | No
Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
| (f) | Performance
by the Company. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior the applicable Condition Satisfaction
Date including, without limitation, the delivery of all Common Shares issuable pursuant to
all previously delivered Advance Notices (for the avoidance of doubt, if the Company shall
have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement at the time of the applicable Condition Satisfaction
Date, but did not comply with any timing requirement set forth herein, then this condition
shall be deemed satisfied unless the Investor is materially prejudiced by the failure of
the Company to comply with any such timing requirement). |
| (g) | No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or governmental authority
of competent jurisdiction that prohibits or directly, materially and adversely affects any
of the transactions contemplated by this Agreement. |
| (h) | No
Suspension of Trading in or Delisting of Common Shares. The Common Shares are quoted
for trading on the Principal Market or Trading Market and all of the Shares issuable pursuant
to such Advance Notice will be listed or quoted for trading on the Principal Market or Trading
Market. Other than with respect to Nasdaq delisting notices, the Company shall not have received
any written notice that is then still pending threatening the continued quotation of the
Common Shares on the Principal Market or Trading Market. |
| (i) | Authorized.
There shall be a sufficient number of authorized but unissued and otherwise unreserved Common
Shares for the issuance of all of the Shares issuable pursuant to such Advance Notice. |
| (j) | Executed
Advance Notice. The representations contained in the applicable Advance Notice shall
be true and correct in all material respects as of the applicable Condition Satisfaction
Date. |
| (k) | Consecutive
Advance Notices. Except with respect to the first Advance Notice, the Pricing Period
for all prior Advances has been completed. |
Furthermore,
the Company shall not have the right to deliver an Advance Notice to the Investor if any of the following shall occur:
| (l) | the
Company breaches any representation or warranty in any material respect, or breaches any
covenant or other term or condition under any Transaction Document in any material respect,
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 three (3) consecutive Business Days; |
| (m) | if
any Person commences a proceeding against the Company pursuant to or within the meaning of
any Bankruptcy Law for so long as such proceeding is not dismissed; |
| (n) | 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 (v) the Company is generally unable to pay its debts as the same become
due; |
| (o) | 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 any Subsidiary for so long as such order, decree or similar action remains
in effect; or |
| (p) | if
at any time the Company is not eligible to transfer its Common Shares electronically through
DTC’s Deposit/Withdrawal At Custodian system. |
Article
VIII
NON-DISCLOSURE OF NON-PUBLIC INFORMATION
The
Company covenants and agrees that, other than as expressly required by Section 6.08 hereof or, with the Investor’s consent pursuant
to Section 6.01(c) and 6.13, it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain
from disclosing, any material non-public information (as determined under the Securities Act, the Exchange Act, or the rules and regulations
of the SEC) directly or indirectly to the Investor or its affiliates, without also disseminating such information to the public, unless
prior to disclosure of such information the Company identifies such information as being material non-public information and provides
the Investor with the opportunity to accept or refuse to accept such material non-public information for review. Unless specifically
agreed to in writing, in no event shall the Investor have a duty of confidentiality, or be deemed to have agreed to maintain information
in confidence, with respect to the delivery of any Advance Notices.
Article
IX
NON EXCLUSIVE AGREEMENT
Notwithstanding
anything contained herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at
any time throughout the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities
and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted
into or replaced by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures,
and/or grant any rights with respect to its existing and/or future share capital.
Article
X
CHOICE OF LAW/JURISDICTION
This
Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the principles
of conflict of laws. The parties further agree that any action between them shall be heard in New York County, New York, and expressly
consent to the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United States District
Court of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant
to this Agreement.
Article
XI
ASSIGNMENT; TERMINATION
Section
11.01 Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person.
Section
11.02 Termination.
| (a) | Unless
earlier terminated as provided hereunder, this Agreement shall terminate automatically on
the earliest of (i) the first day of the month next following the 36-month anniversary of
the date hereof or (ii) the date on which the Investor shall have made payment of Advances
pursuant to this Agreement for Common Shares equal to the Commitment Amount. |
| (b) | The
Company may terminate this Agreement effective upon five Trading Days’ prior written
notice to the Investor; provided that (i) there are no outstanding Advance Notices, the Common
Shares under which have yet to be issued, and (ii) the Company has paid all amounts owed
to the Investor pursuant to this Agreement. This Agreement may be terminated at any time
by the mutual written consent of the parties, effective as of the date of such mutual written
consent unless otherwise provided in such written consent. |
| (c) | Nothing
in this Section 11.02 shall be deemed to release the Company or the Investor from any liability
for any breach under this Agreement, or to impair the rights of the Company and the Investor
to compel specific performance by the other party of its obligations under this Agreement.
The indemnification provisions contained in Article V shall survive termination hereunder. |
Article
XII
NOTICES
Other
than with respect to Advance Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.02 in accordance
with Exhibit C, any notices, consents, waivers, or other communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt,
when sent by facsimile or e-mail if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day;
(iii) 5 days after being sent by U.S. certified mail, return receipt requested, (iv) 1 day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for
such communications (except for Advance Notices which shall be delivered in accordance with Exhibit A hereof) shall be:
If to the Company,
to: |
|
CERO
THERAPEUTICS HOLDINGS, INC.
201 Haskings
Way, Suite 230
South
San Francisco, CA 94080
Attention:
Charles Carter, Chief Financial Officer
Telephone:
Email: |
|
|
With
a Copy (which shall not constitute notice or delivery of process) to:
|
|
Goodwin
Procter LLP
620 Eighth
Avenue
New York,
NY 10018
Attention:
Stephen M. Davis and Jeffrey A. Letalien
Telephone:
Email: |
|
|
If to the Investor(s): |
|
ARENA
BUSINESS SOLUTIONS GLOBAL SPC II, LTD
405 Lexington
Ave, 59th Floor
New York,
NY 10174
Attention:
Yoav Stramer
Telephone:
Email: |
|
|
With a Copy (which shall
not constitute notice or delivery of process) to: |
|
Pryor
Cashman LLP
7 Times
Square
New York,
New York 10036
Attention:
Matthew Ogurick, Esq.
Telephone:
Email: |
Either may
change its information contained in this Article XII by delivering notice to the other party as set forth herein.
Article
XIII
MISCELLANEOUS
Section
13.01 Counterparts. This Agreement may be executed in identical counterparts, both 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. Facsimile or
other electronically scanned and delivered signatures, including by e-mail attachment, shall be deemed originals for all purposes of
this Agreement.
Section
13.02 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor,
the Company, their respective affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement
contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein,
neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement. The provisions
of the existing confidentiality agreement between the Investor and the Company shall remain in force, except that all provisions therein
dealing with the treatment of material non-public information are superseded by this Agreement.
Section
13.03 Reporting Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or
trading volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor
thereto. The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section
13.04 Due Diligence Fee; Commitment Fee Shares.
| (a) | Each
of the parties shall pay its own fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in connection with this Agreement
and the transactions contemplated hereby. |
| (b) | In
consideration for the Investor’s execution and delivery of this Agreement, the Company
shall issue to the Investor, as a commitment fee, that number of Common Shares (“Commitment
Fee Shares”) equal to 500,000 divided by the simple average of the daily VWAP of
the Common Shares during the five (5) Trading Days immediately preceding the effectiveness
of the registration statement on which the Commitment Fee Shares are registered, promptly
(but in no event later than one (1) Trading Day) after the effectiveness of the Registration
Statement. The reference price calculation set forth above will capture up to the date before
such registration statement becomes effective. Notwithstanding anything herein to the contrary,
the Company shall use its best efforts to register the Commitment Fee Shares on the same
registration statement on which the shares issuable pursuant to the Keystone ELOC are registered. |
Section
13.05 Brokerage. Each of the parties hereto represents that it has had no dealings in connection with this transaction with
any finder or broker who will demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor,
on the other hand, agree to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming
brokerage commissions or finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party
in connection with this Agreement or the transactions contemplated hereby.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be executed by the undersigned, thereunto duly authorized,
as of the date first set forth above.
COMPANY: |
|
|
|
CERO THERAPEUTICS HOLDINGS, INC. |
|
|
|
By: |
/s/
Charles Carter |
|
Name: |
Charles Carter |
|
Title: |
Chief Financial Officer |
|
|
|
INVESTOR: |
|
|
|
ARENA
BUSINESS SOLUTIONS GLOBAL SPC II, LTD on
behalf of and for the account of SEGREGATED PORTFOLIO #13 – SPC
#13 |
|
|
|
By: |
/s/ Lawrence Cutler |
|
Name: |
Lawrence Cutler |
|
Title: |
Authorized Signatory |
|
EXHIBIT
A
ADVANCE NOTICE
CERO THERAPEUTICS
HOLDINGS, INC.
Dated: ______________
Advance Notice Number: ____
The undersigned,
_______________________, hereby certifies, with respect to the sale of Common Shares of CERO THERAPEUTICS HOLDINGS, INC.. (the “Company”)
issuable in connection with this Advance Notice, delivered pursuant to that certain Purchase Agreement, dated as of February 23, 2024
(the “Agreement”), as follows:
| 1 | The
undersigned is the duly elected ______________ of the Company. |
| 2 | There
are no fundamental changes to the information set forth in the Registration Statement which
would require the Company to file a post-effective amendment to the Registration Statement. |
| 3 | All
conditions to the delivery of this Advance Notice are satisfied as of the date hereof. |
| 4 | The
number of Common Shares that the Company is requesting in this Advance is _____________________. |
| 5 | The
number of Common Shares of the Company issued and outstanding as of the date hereof is ___________. |
| 6 | The
Pricing Period shall be one (1) Trading Day. |
The undersigned
has executed this Advance Notice as of the date first set forth above.
CERO
THERAPEUTICS
HOLDINGS,
INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
EXHIBIT
B
FORM OF SETTLEMENT DOCUMENT
VIA EMAIL
CERO THERAPEUTICS
HOLDINGS, INC.
Attn:
Email:
Subject:
Below
please find the settlement information with respect to the Advance Notice Date of:
| 1. | Amount
of Advance requested in the Advance Notice |
| 2. | Adjusted
Advance (after taking into account any adjustments pursuant to Section 2.01): |
| 4. | Purchase
Price (Market Price x 90%) per share |
| 5. | Number
of Shares due to Investor |
Please
issue the number of Shares due to the Investor to the account of the Investor as follows:
INVESTOR’S
DTC PARTICIPANT #2:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
COUNTRY:
CONTACT PERSON:
NUMBER AND/OR
EMAIL:
|
Sincerely, |
|
|
|
ARENA
BUSINESS
SOLUTIONS
GLOBAL SPC II,
LTD
on behalf of and for the
account
of SEGREGATED
PORTFOLIO
#13 – SPC #13 |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
Agreed and Approved: |
|
CERO THERAPEUTCS HOLDINGS, INC. |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
| 2 | Investor
understands and acknowledges that shares will be issued in book-entry form on the DRS of
the transfer agent or certificated unless the conditions set forth in Section 2.05(b) have
been satisfied |
SCHEDULE
1
Authorized Representatives
The following
individuals may execute Advance Notices:
| 1. | Brian
Atwood, Chief Executive Officer |
| 2. | Charles
Carter, Chief Financial Officer |
EXHIBIT
C
VIA EMAIL
Email: ELOC@arenaco.com
Subject:
ELOC: CERO THERAPEUTICS, INC.
Advance Notice
Below
please find the Advance Notice Date of:
| 1. | Amount
of Advance Shares: |
v3.24.0.1
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|
Feb. 23, 2024 |
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|
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false
|
Document Period End Date |
Feb. 23, 2024
|
Entity File Number |
001-40877
|
Entity Registrant Name |
CERO THERAPEUTICS HOLDINGS, INC.
|
Entity Central Index Key |
0001870404
|
Entity Tax Identification Number |
87-1088814
|
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DE
|
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201 Haskins Way
|
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Suite 230
|
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South San Francisco
|
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CA
|
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|
Title of 12(b) Security |
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|
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CERO
|
Security Exchange Name |
NASDAQ
|
Warrants, each whole warrant exercisable for one share of common stock |
|
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NASDAQ
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Phoenix Biotech Aquisition (NASDAQ:PBAXU)
過去 株価チャート
から 4 2024 まで 5 2024
Phoenix Biotech Aquisition (NASDAQ:PBAXU)
過去 株価チャート
から 5 2023 まで 5 2024