Exhibit 10.1


 


Note Purchase Agreement


 


This
Note Purchase Agreement (this “Agreement”), dated as of November 16, 2021, is entered into by and between Outlook
Therapeutics, Inc., a Delaware corporation (“Company”), and Streeterville
Capital, LLC, a Utah limited liability company, its successors and/or assigns (“Investor”).


 


A.           Company
and Investor are executing and delivering this Agreement in reliance upon an exemption from securities registration afforded by the Securities
Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder by the United States
Securities and Exchange Commission (the “SEC”).


 


B.            Investor
desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement, a Promissory Note,
in the form attached hereto as Exhibit A, in the original principal amount of $10,220,000.00 (the “Note”).


 


C.            This
Agreement, the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party under or in
connection with this Agreement, as the same may be amended from time to time, are collectively referred to herein as the “Transaction
Documents”.


 


NOW, THEREFORE, in
consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Company and Investor hereby agree as follows:


 


1.             Purchase and Sale of Note.


 


1.1.          Purchase of Note. Company hereby agrees to issue and sell to Investor and Investor hereby agrees to purchase from Company
the Note. In consideration thereof, Investor agrees to pay the Purchase Price (as defined below) to Company.


 


1.2.          Form of Payment. On the Closing Date (as defined below), Investor shall pay the Purchase Price to Company via wire transfer
of immediately available funds against delivery of the Note.


 


1.3.          Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below,
the date of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be November 16,
2021, or another mutually agreed upon date. The closing of the transactions contemplated by this Agreement (the “Closing”)
shall occur on the Closing Date by means of the exchange by email of .pdf documents, but shall be deemed for all purposes to have occurred
at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


1.4.          Original Issue Discount. The Note carries an original issue discount of $200,000.00 (the “OID”), all
of which amount will be included in the original principal balance of the Note. In addition, Company agrees to pay $20,000.00 to Investor
to cover Investor’s legal fees, accounting costs, due diligence, monitoring and other transaction costs incurred in connection with
the purchase and sale of the Note (the “Transaction Expense Amount”), all which amount will be included in the original
principal balance of the Note. The “Purchase Price”, therefore, shall be $10,000,000.00, computed as follows: $10,220,000.00
initial principal balance, less the OID, less the Transaction Expense Amount.


 


2.             Investor’s
Representations and Warranties. Investor represents and warrants to Company that as of the Closing Date: (i) Investor has full
power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained herein, and this
Agreement has been duly and validly authorized; (ii) this Agreement constitutes a valid and binding agreement of Investor
enforceable in accordance with its terms; and (iii) Investor is an “accredited investor” as that term is defined in Rule
501(a) of Regulation D of the 1933 Act.


 






    1


     


    

 


3.             Company’s
Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date: (i) Company is a
corporation duly organized, validly existing and in good standing under the laws of its state of incorporation and has the requisite
corporate power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction where the nature of the business conducted or
property owned by it makes such qualification necessary and for which the failure to remain so qualified would reasonably be
expected to have a material adverse effect on the business, operations or financial condition of the Company; (iii) Company has
registered its shares of common stock, $0.01 per share (the “Common Stock”), under Section 12(b) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), and is obligated to file reports pursuant to
Section 13 or Section 15(d) of the 1934 Act; (iv) the Company has full power and authority to enter into each of the
Transaction Documents and to incur and perform all obligations and covenants contained herein and therein, and the transactions
contemplated hereby and thereby, have been duly and validly authorized by Company and all necessary actions have been taken; (v)
this Agreement, the Note, and the other Transaction Documents have been duly executed and delivered by Company and constitute the
valid and binding obligations of Company enforceable in accordance with their terms; (vi) the execution and delivery of the
Transaction Documents by Company and the consummation by Company of the other transactions contemplated by the Transaction Documents
do not and will not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default
under (a) Company’s certificate of incorporation or bylaws, each as currently in effect, (b) any indenture, mortgage, deed of
trust, or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets are
bound the breach or default of which would reasonably be expected to have a material adverse effect on the business, operations or
financial condition of the Company, or (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or
order of any court, United States federal, state or foreign regulatory body, administrative agency, or other governmental body
having jurisdiction over Company or any of Company’s properties or assets; (vii) no further authorization, approval or consent
of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or
any lender of Company is required to be obtained by Company for the issuance of the Note to Investor or the entering into of the
Transaction Documents; (viii) none of Company’s filings with the SEC contained, at the time they were filed, any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not materially misleading; (ix) Company has filed all
reports, schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a
timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or
other document prior to the expiration of any such extension; (x) there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body pending or, to the knowledge of Company, threatened against Company before or by any
governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any other person that
has not been disclosed in the Company’s public filings and which would reasonably be expected to have a material adverse
effect on the business, operations or financial condition of the Company; (xi) Company has not consummated any financing transaction
that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act that was required to be disclosed
therein; (xii) Company is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as
such type of “issuer” is described in Rule 144(i)(1) under the 1933 Act; (xiii) there are no commissions, placement
agent or finder’s fees or similar payments (“Broker Fees”) or other fees of a type contemplated in this
subsection that may be due in connection with the transactions contemplated hereby; (xiv) neither Investor nor any of its officers,
directors, members, managers, employees, agents or representatives has made any representations or warranties to Company or any of
its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in
making its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any
representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, employees, agents or
representatives other than as set forth in the Transaction Documents; and (xv) Company has performed due diligence and background
research on Investor and its affiliates including, without limitation, John M. Fife, and, to its satisfaction, has made inquiries
with respect to all matters Company may consider relevant to the undertakings and relationships contemplated by the Transaction
Documents including, among other things, the following:
http://investing.businessweek.com/research/stocks/people/person.asp?personId=7505107&ticker=UAHC;SEC Civil Case No. 07-C-0347
(N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. In addition, various affiliates of Investor
are involved in ongoing litigation with the SEC regarding broker-dealer registration (see SEC Civil Case No. 1:20-cv-05227
(N.D. Ill.)). Company, being aware of the matters described in subsection (xv) above, acknowledges and agrees that such matters, or
any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees it will
not use any such information as a defense to performance of its obligations under the Transaction Documents or in any attempt to
avoid, modify, offset or reduce such obligations.


 






    2


     


    

 


4.             Company
Covenants. Until all of Company’s obligations under the Note are paid and performed in full, or within the timeframes
otherwise specifically set forth below, Company will at all times comply with the following covenants: (i) Company will timely file
on or before the applicable deadline all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the 1934
Act, and will take all reasonable action under its control to ensure that adequate current public information with respect to
Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an
issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such
termination; (ii) the Common Stock shall be listed or quoted for trading on either NYSE or Nasdaq; (iii) trading in Company’s
Common Stock will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on Company’s principal
trading market; (iv) Company will not enter into any equity line of credit or other financing transaction that places any
limitations or restrictions longer than sixty (60) days on Company’s ability to issue Common Stock to Investor; and (v)
Company will not make any Variable Security Issuance (as defined below) or incur any debt other than in the ordinary course of
business without Investor’s prior written consent, which consent may be granted or withheld in Investor’s sole and
absolute discretion other than in connection with an Exempt Issuance (as defined below). For purposes hereof, the term
“Variable Security Issuance” means any issuance of any Company securities that (A) have or may have conversion
rights of any kind, contingent, conditional or otherwise, in which the number of shares that may be issued pursuant to such
conversion right varies with the market price of the Common Stock, or (B) are or may become convertible into Common Stock (including
without limitation convertible debt, warrants or convertible preferred stock), with a conversion price that varies with the market
price of the Common Stock, even if such security only becomes convertible following an event of default, the passage of time, or
another trigger event or condition. For avoidance of doubt, the issuance of shares of Common Stock under, pursuant to, in exchange
for or in connection with any contract or instrument, whether convertible or not, is deemed a Variable Security Issuance for
purposes hereof if the number of shares of Common Stock to be issued is based upon or related in any way to the market price of the
Common Stock, including, but not limited to, Common Stock issued in connection with a Section 3(a)(9) exchange, a Section 3(a)(10)
settlement, or any other similar settlement or exchange. For purposes hereof, “Exempt Issuance” means (a) the
issuance of Common Stock or common stock equivalents to employees, officers, directors or vendors of the Company pursuant to any
stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a committee of
directors established for such purpose, (b) the issuance of securities upon the exercise or exchange of or conversion of any
Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c)
securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved
by the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions,
divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Security Issuance component,
provided that any such issuance shall only be to a person (or to the equity holders of a person) which is, itself or through its
subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall provide to the
Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities,
(d) the entry into, or issuance of securities pursuant to, an “at-the-market” facility, or (e) the issuance of warrants
with no price reset.


 






    3


     


    

 


5.             Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor
at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:


 


5.1.          Investor shall have executed this Agreement and delivered the same to Company.


 


5.2.          Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.


 


6.             Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the
Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions
are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:


 


6.1.          Company shall have executed this Agreement and the Note and delivered the same to Investor.


 


6.2.          Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto
as Exhibit B evidencing Company’s approval of the Transaction Documents.


 


6.3.          Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company
herein or therein.


 


7.             Miscellaneous. The provisions set forth in this Section 7 shall apply to this Agreement, as well as all other Transaction
Documents as if these terms were fully set forth therein; provided, however, that in the event there is a conflict between any provision
set forth in this Section 7 and any provision in any other Transaction Document, the provision in such other Transaction Document shall
govern.


 


7.1.          Governing
Law; Waiver of Jury Trial. This Agreement, the Transaction Documents, and all actions arising out of or in connection with this
Agreement and the other Transaction Documents shall be construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY AND REPRESENTS
THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.


 






    4


     


    

 


7.2.          Venue. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement or the other Transaction Documents and the transactions contemplated
hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world
by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to
the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.


 


7.3.          Counterparts. Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument. The parties acknowledge and agree that this Agreement and all
other Transaction Documents may be executed by electronic signature, which shall be considered as an original signature for all purposes
and shall have the same force and effect as an original signature. The parties hereto confirm that any electronic copy of another party’s
executed counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to be an executed original
thereof.


 


7.4.          Document Imaging. Investor shall be entitled, in its sole discretion, to image or make copies of all or any selection of
the agreements, instruments, documents, and items and records governing, arising from or relating to any of Company’s loans from
Investor, including, without limitation, this Agreement and the other Transaction Documents, and Investor may destroy or archive the paper
originals. The parties hereto (i) waive any right to insist or require that Investor produce paper originals, (ii) agree that such
images shall be accorded the same force and effect as the paper originals, (iii) agree that Investor is entitled to use such images in
lieu of destroyed or archived originals for any purpose, including as admissible evidence in any demand, presentment or other proceedings,
and (iv) further agree that any executed facsimile (faxed), scanned, emailed, or other imaged copy of this Agreement or any other Transaction
Document shall be deemed to be of the same force and effect as the original manually executed document.


 


7.5.          Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.


 


7.6.          Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified
to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.


 


7.7.          Entire
Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the parties with
respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Company nor
Investor makes any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance of doubt, all
prior term sheets or other documents between Company and Investor, or any affiliate thereof, related to the transactions
contemplated by the Transaction Documents (collectively, “Prior Agreements”), that may have been entered into
between Company and Investor, or any affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by the
Transaction Documents. To the extent there is a conflict between any term set forth in any Prior Agreement and the term(s) of the
Transaction Documents, the Transaction Documents shall govern.


 






    5


     


    

 


7.8.          Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both
parties hereto.


 


7.9.          Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall
be deemed effectively given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt therefor
or by email to an executive officer, or by facsimile (with successful transmission confirmation), (ii) the earlier of the date delivered
or the third business day after deposit, postage prepaid, in the United States Postal Service by certified mail, or (iii) the earlier
of the date delivered or the third business day after mailing by express courier, with delivery costs and fees prepaid, in each case,
addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such party may designate
by five (5) calendar days’ advance written notice similarly given to each of the other parties hereto):


 


If to Company:


 


Outlook Therapeutics, Inc.


Attn:
Lawrence A. Kenyon


485 Route 1 South


Building F, Suite
320


Iselin, New Jersey


email:lawrencekenyon@outlooktherapeutics.com


 


With a copy to (which copy shall not constitute notice):


 


Cooley LLP


Attn: Yvan-Claude J. Pierre


55 Hudson Yards


New York, New York 10001-2163


email: ypierre@cooley.com


 


If to Investor:


 


Streeterville Capital, LLC


Attn: John M. Fife


303 East Wacker Drive, Suite 1040


Chicago, Illinois 60601


 


With a copy to (which copy shall not constitute notice):


 


Hansen Black Anderson Ashcraft PLLC


Attn: Jonathan K. Hansen


3051 West Maple Loop Drive, Suite 325


Lehi, Utah 84043





 






    6


     


    

 


7.10.        Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by
Investor hereunder may be assigned by Investor to its affiliates, in whole or in part, without the need to obtain Company’s consent
thereto. Except as set forth above, neither Investor nor Company may assign its rights or obligations under this Agreement or delegate
its duties hereunder without the prior written consent of the other party.


 


7.11.        Survival. The representations and warranties of the parties and the agreements and covenants set forth in this Agreement
shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of each party.


 


7.12.        Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.


 


7.13.        Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents
are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that
any party may have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law, in equity, or
by statute, and any and all such rights and remedies may be exercised from time to time and as often and in such order as such party may
deem expedient.


 


7.14.        Attorneys’ Fees and Cost of Collection. In the event of any action at law or in equity to enforce or interpret the
terms of this Agreement or the other Transaction Documents, the parties agree that the party who is awarded the most money shall be deemed
the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys’
fees and expenses paid by such prevailing party in connection with the litigation and/or dispute without reduction or apportionment based
upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair a court’s power
to award fees and expenses for frivolous or bad faith pleadings.


 


7.15.        Waiver. No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by
the party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision
or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent
or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.


 


7.16.        Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement
and the other Transaction Documents.


 


7.17.        Voluntary Agreement. Company has carefully read this Agreement and each of the other Transaction Documents and has asked
any questions needed for Company to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction
Documents and fully understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or
has waived the right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any
duress or undue influence by Investor or anyone else.


 





[Remainder of page intentionally left blank;
signature page follows]





 






    7


     


    

 


IN WITNESS WHEREOF, the undersigned
Investor and Company have caused this Agreement to be duly executed as of the date first above written.


 


SUBSCRIPTION AMOUNT:


 


	Principal Amount of Note:	$10,220,000.00
	 	 
	Purchase Price:	$10,000,000.00




 


	 	INVESTOR:
	 	 
	 	Streeterville Capital, LLC
	 	 
	 	By:	/s/ John M. Fife
	 	 	John M. Fife, President
	 	 
	 	COMPANY:
	 	 
	 	Outlook Therapeutics, Inc.
	 	 
	 	By:	/s/ Lawrence A. Kenyon
	 	 	Lawrence A. Kenyon, CFO




 


ATTACHED EXHIBITS:


 


	Exhibit A	Note
	Exhibit B	Secretary’s Certificate



 


[Signature Page to Note
Purchase Agreement]