Exhibit 10.1


 


Moleculin Biotech, Inc.

5300 Memorial Drive, Suite 950


Houston, Texas 77007


 


 


 


Ladies and Gentlemen:


 


The undersigned (the “Investor”)
hereby confirms its agreement with Moleculin Biotech, Inc., a Delaware corporation (the “Company”) as follows:


 


1.       This
Subscription Agreement, including the Terms and Conditions For Purchase of Securities attached hereto as Annex I (collectively,
(this “Agreement”) is made as of the date set forth below between the Company and the Investor.


 


2.       The
Company has authorized the sale and issuance to certain investors of up to an aggregate of 9,375,000 Units (the “Units”)
consisting of (i) 9,375,000 authorized but unissued shares of common stock, par value $0.001 per share (the “Common Stock”),
of the Company (the “Shares”) and (ii) Warrants (the “Warrants”)
to purchase an aggregate of up to 4,687,500 authorized but unissued shares of Common Stock (the “Warrant
Shares”). Each Unit will consist of one Share and 0.5 of a Warrant. The Shares, the Warrants and the Warrant Shares are
collectively referred to as the “Securities.” The Units will not be separately issued or certificated and the
Shares and Warrants shall be immediately separable and transferable upon issuance. The form of the Warrant is attached hereto as
Exhibit A.


 


3.       The
offering and sale of the Securities (the “Offering”) are being made pursuant to (1) an effective Registration
Statement on Form S-3, File No. 333-219434 (the “Registration Statement”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) (including the prospectus contained therein (the “Base Prospectus”),
(2) if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the Securities
Act of 1933, as amended (the “Securities Act”)), that have been or will be filed with the Commission and delivered
to the Investor on or prior to the date hereof (the “Issuer Free Writing Prospectus”), containing certain supplemental
information regarding the Securities, the terms of the Offering and the Company and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”) containing certain supplemental
information regarding the Shares and Warrants and terms of the Offering that has been or will be filed with the Commission
and delivered to the Investor (or made available to the Investor by the filing by the Company of an electronic version thereof
with the Commission). 


 


4.       The
Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor
the Shares and Warrants set forth below for the aggregate Purchase Price set forth below. The Shares and Warrants shall be purchased
pursuant to the Terms and Conditions for Purchase of Securities attached hereto as Annex I and incorporated herein
by this reference as if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten by the
placement agent (the “Placement Agent”) named in the Prospectus and that there is no minimum offering amount.


 






     


     


    

 


5.       The
manner of settlement of the Shares and Warrants purchased by the Investor shall be as follows (check one):


 


a.       The Shares
shall be settled as follows:


 


Delivery versus
payment (“DVP”) through DTC (i.e., on the Closing Date, the Company shall issue such Shares registered in the
Investor’s name and address as set forth below and released by the Transfer Agent directly to the account(s) at Oppenheimer
 & Co. Inc. (the “Placement Agent”) identified by the Investor; upon receipt of such Shares, the Placement
Agent shall promptly electronically deliver such Shares to the Investor, and simultaneously therewith payment shall be made by
the Placement Agent by wire transfer to the Company). NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:


 


		(I)	NOTIFY THE PLACEMENT AGENT OF THE ACCOUNT OR ACCOUNTS AT THE PLACEMENT
AGENT TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND



 


		(II)	CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT THE PLACEMENT AGENT TO BE
CREDITED WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SECURITIES
BEING PURCHASED BY THE INVESTOR.



 


IT IS THE INVESTOR’S RESPONSIBILITY
TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT
BY WAY OF DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS OR
DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES AND WARRANTS MAY NOT BE DELIVERED AT CLOSING TO
THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.


 


6.       The
executed Warrants shall be delivered to the Investor by mail, registered in such names and sent to such address as specified by
the Investor below.


 


7.       The
Investor represents that, except as set forth below, (a) it has had no position, office or other material relationship within the
past three years with the Company or persons known to it to be affiliates of the Company, (b) it is not a member of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) or a a person “assocuated with a member” (as such
term is defined under FINRA’s By-laws) as of the Closing, and (c) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which the Investor is a part in connection with the Offering, acquired,
or obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for Common Stock)
or the voting power of the Company on a post-transaction basis. Exceptions: 


 


____________________________________________________________________


 






     


     


    

 


(If no exceptions,
write “none.” If left blank, response will be deemed to be “none.”)


 


8.       The
Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version
thereof with the Commission) the Base Prospectus, dated August 11, 2017, which is a part of the Company’s Registration Statement,
the documents incorporated by reference therein and any free writing prospectus (collectively, the “Disclosure Package”),
prior to or in connection with the receipt of this Agreement. The Investor acknowledges that, prior to the delivery of this
Agreement to the Company, the Investor will receive certain additional information regarding the Offering, including pricing information
(the “Offering Information”). Such information may be provided to the Investor by any means permitted
under the Securities Act, including the Prospectus Supplement, a free writing prospectus and oral communications.


 


9.       No
offer by the Investor to buy Shares and Warrants will be accepted and no part of the Purchase Price will be delivered to the Company
until the Investor has received the Offering Information and the Company has accepted such offer by countersigning a copy of this
Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the
Company (or the Placement Agent on behalf of the Company) sending (orally, in writing or by electronic mail) notice of its acceptance
of such offer. An indication of interest will involve no obligation or commitment of any kind until the Investor has been
delivered the Offering Information and this Agreement is accepted and countersigned by or on behalf of the Company.


 


10.       The
Company acknowledges that the only material, non-public information relating to the Company or its subsidiaries that the Company,
its employees or agents has provided to the Investor in connection with the Offering prior to the date hereof is the existence
and terms of the Offering.


 




     


     


    

 


Number of Units, Consisting
of Shares and Warrants:                                                  


 


Purchase Price per Unit: $1.60


 


Aggregate Purchase Price: $_____________________


 


Please confirm that the foregoing correctly
sets forth the agreement between us by signing in the space provided below for that purpose.


 


 





	 	Dated as of:  April 23, 2019
	 	 
	 	 
	 	 	 
	 	INVESTOR	 	 
	 	 	 	 
	 	By:	 	 
	 	Print Name:	 	 
	 	Title:	 	 
	 	Address:	 	 
	 	 	 	 







 




     


     


    

 


Agreed and Accepted

this 23rd day of April 2019:


 


MOLECULIN BIOTECH, INC.


 


 




	By:	                        	 
	 	Title:	 





  




     


     


    

 


annex
I



TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES


 


1.       Authorization
and Sale of the Securities. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of the
Shares and Warrants.


 


2.       Agreement
to Sell and Purchase the Securities; Placement Agent.


 


2.1       At
the Closing (as defined in Section 3.1), the Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Shares and Warrants set forth on the last page of the
Agreement to which these Terms and Conditions for Purchase of Securities are attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on the Signature Page.


 


2.2       The
Company proposes to enter into substantially this same form of Subscription Agreement with certain other investors (the “Other
Investors”) and expects to complete sales of Shares and Warrants to them. The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the “Investors,” and this Agreement and the Subscription
Agreements executed by the Other Investors are hereinafter sometimes collectively referred to as the “Agreements.”


 


2.3       Investor
acknowledges that the Company has agreed to pay Oppenheimer & Co. Inc. (the “Placement Agent”) a fee (the
 “Placement Fee”) and to reimburse the Placement Agent for certain expenses in respect of the sale of the
Shares and Warrants to the Investor.


 


2.4       The
Company has entered into a Placement Agent Agreement, dated the date hereof, (the “Placement Agreement”),
with the Placement Agent that contains representations, warranties, covenants and agreements of the Company that may be relied
upon by the Investor, which shall be a third party beneficiary thereof. The Company confirms that neither it nor any other
Person acting on its behalf has provided the Investor or their agents or counsel with any information that constitutes or could
reasonably be expected to constitute material, nonpublic information, except as will be disclosed in the Prospectus and/or in the
Company’s Form 8-K to be filed with the Commission in connection with the Offering. The Company understands and confirms
that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company.


 


3.       Closings
and Delivery of the Securities and Funds.


 


3.1       Closing.
The completion of the purchase and sale of the Shares and Warrants (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and the Placement Agent,
and of which the Investors will be notified in advance by the Placement Agent, in accordance with Rule 15c6-l promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the Closing, (a) the Company
shall cause the Company’s transfer agent (“Transfer Agent”), to deliver to the Investor the number of
Shares included in the Units set forth on the Signature Page registered in the name of the Investor or, if so indicated on
the Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee designated by the Investor, (b) the Company
shall cause to be delivered to the Investor, a Warrant for the number of Warrant Shares included in the Units set forth on the
Signature Page, and (c) the aggregate purchase price for the Shares and Warrants being purchased by the Investor will be delivered
by or on behalf of the Investor to the Company.


 






     


     


    

 


3.2       Conditions
to the Obligations of the Parties. 


 


3.3(a)Conditions
to the Company’s Obligations. The Company’s obligation to issue and sell the Shares and Warrants to the Investor
shall be subject to: (i) the receipt by the Company of the purchase price for the Shares and Warrants being purchased hereunder
as set forth on the Signature Page, and (ii) the accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date.


 


3.4(b)Conditions
to the Investor’s Obligations. The Investor’s obligation to purchase the Shares and Warrants will be subject
to the accuracy of the representations and warranties made by the Company and the fulfillment of those undertakings of the Company
to be fulfilled prior to the Closing Date, including without limitation, those contained in the Placement Agreement, and to the
condition that the Placement Agent shall not have: (a) terminated the Placement Agreement pursuant to the terms thereof or (b)
determined that the conditions to the closing in the Placement Agreement have not been satisfied. The Investor’s obligations
are expressly not conditioned on the purchase by any or all of the Other Investors of the Shares and Warrants that they have agreed
to purchase from the Company. The Investor understands and agrees that, in the event that the Placement Agent in its sole discretion
determines that the conditions to closing in the Placement Agreement have not been satisfied or if the Placement Agreement may
be terminated for any other reason permitted by such Placement Agreement, then the Placement Agent may, but shall not be obligated
to, terminate such Agreement, which shall have the effect of terminating this Subscription Agreement pursuant to Section 14
below.


 


3.5       Delivery
of Funds.


 


Payment for the Shares and Warrants shall be made
as follows:


 


Delivery
Versus Payment through The Depository Trust Company. The purchase of the Shares shall be settled by delivery versus payment
through DTC. No later than one (1) business day after the execution of this Agreement by the Investor and the Company,
the Investor shall confirm that the account or accounts at the Placement Agent to be credited with the Shares being purchased by
the Investor have a minimum balance equal to the aggregate purchase price for the Shares and Warrants being purchased by the Investor.


 


3.6       Delivery
of Shares.


 


Delivery
Versus Payment through The Depository Trust Company. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall notify the Placement Agent of the account or accounts at
the Placement Agent to be credited with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver
the Shares to the Investor through DTC directly to the account(s) at the Placement Agent identified by Investor. Upon receipt of
such Shares, the Placement Agent shall promptly electronically deliver such Shares to the Investor, and simultaneously therewith
payment shall be made by the Placement Agent by wire transfer to the Company.


 






     


     


    

 


4.       Representations,
Warranties and Covenants of the Investor.


 


The Investor acknowledges,
represents and warrants to, and agrees with, the Company and the Placement Agent that:


 


4.1       The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments
in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments
in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page
and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct
as of the Closing Date and (c) in connection with its decision to purchase the Shares and Warrants set forth on the Signature Page,
has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein and the Offering
Information.


 


4.2       
(a) No action has been or will be taken in any jurisdiction outside the United States by the Company or
the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials
in connection with the issue of the Shares and Warrants in any jurisdiction outside the United States where action for that
purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations
in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes
any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any
representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Securities,
except as set forth or incorporated by reference in the Registration Statement, Prospectus or any free writing prospectus.


 


4.3       (a)
The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b)
this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except
as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying
any law, rule or regulation (including any federal or state securities law, rule or regulation).


 


4.4       The
Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other
materials presented to the Investor in connection with the purchase and sale of the Units constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that
there is no established public trading market for the Warrants, and that the Company does not expect such a market to develop.
In addition, the Company does not intend to apply for listing of the Warrants on any national securities exchange or other trading
market. The Investor understands that without an active trading market, the liquidity of the Warrants will be limited. 


 






     


     


    

 


4.5       The
Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior
to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.


 


4.6       Since
the time at which the Placement Agent first provided the material pricing terms of the Offering, the Investor has not disclosed
any material pricing information regarding the Offering to any third parties (other than its legal, accounting and other advisors)
and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales
(as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases
or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this
Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement
to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof,
 “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges,
forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule
16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions
through non-U.S. broker dealers or foreign regulated brokers.


 


5.       Survival
of Representations, Warranties and Agreements; Third Party Beneficiary. Notwithstanding any investigation made by any
party to this Agreement or by the Placement Agent, all covenants, agreements, representations and warranties made by the Company
and the Investor herein will survive the execution of this Agreement, the delivery to the Investor of the Securities being purchased
and the payment therefor. The Placement Agent shall be a third party beneficiary with respect to the representations, warranties
and agreements of the Investor in Section 4 hereof.


 


6.       Notices.
All notices, requests, consents and other communications hereunder will be in writing, will be mailed (a) if within the
domestic United States by first-class registered or certified airmail, or nationally recognized overnight express courier, postage
prepaid, or by facsimile or (b) if delivered from outside the United States, by International Federal Express or facsimile, and
will be deemed given (i) if delivered by first-class registered or certified mail domestic, three business days after so mailed,
(ii) if delivered by nationally recognized overnight carrier, one business day after so mailed, and (iii) if delivered by International
Federal Express, two business days after so mailed addressed as follows:


 






     


     


    

 


(a)       if
to the Company, to:



Moleculin Biotech, Inc.

5300 Memorial Drive, Suite 950

Houston, Texas 77007

Attention: Jonathan P. Foster, CFO



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



Schiff Hardin LLP

100 North 18th Street


Philadelphia, Pennsylvania 19103


Attention: Cavas S. Pavri


 


(b)       
if to the Investor, at its address on the Signature Page hereto, or at such other address or addresses as may have been furnished
to the Company in writing.


 


7.       Changes.
This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Investor.


 


8.       Headings.
The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not
be deemed to be part of this Agreement.


 


9.       Severability.
In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.


 


10.       Governing
Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New
York, without giving effect to the principles of conflicts of law that would require the application of the laws of any other
jurisdiction.


 


11.       Counterparts.
This Agreement may be executed in two or more counterparts, each of which will constitute an original, but all of which, when
taken together, will constitute but one instrument, and will become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that the Company shall
deliver its counterpart to the Investor along with the Prospectus (or the filing by the Company of an electronic version thereof
with the Commission).


 


12.       Confirmation
of Sale. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s signed counterpart
to this Agreement, together with the Prospectus Supplement (or the filing by the Company of an electronic version thereof
with the Commission), shall constitute written confirmation of the Company’s sale of the Shares and Warrants to such Investor.


 






     


     


    

 


13.       Press
Release; 8-K Filing. The Company and the Investor agree that the Company shall (a) prior to the opening of the financial markets
in New York City on April 23, 2019 issue a press release announcing the Offering and disclosing all material information regarding
the Offering (the “Press Release”), and (b) as promptly as practicable on April 23, 2019 file a current report
on Form 8-K with the Securities and Exchange Commission including, but not limited to, a form of this Agreement as an exhibit thereto.
Effective upon the issuance of the Press Release, the Company acknowledges and agrees that any and all confidentiality and similar
obligations under any agreement, whether written or oral, between the Company, any of its subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and the Investor or any of its affiliates, on the other
hand, shall terminate. From and after the issuance of the Press Release, the Investor shall not be deemed to be in possession of
any material, nonpublic information received from the Company, any of its subsidiaries or any of their respective officers, directors,
employees or agents.


  


14.       Termination.
In the event that the Placement Agreement is terminated by the Placement Agent pursuant to the terms thereof, this Agreement
shall terminate without any further action on the part of the parties hereto.


 


15.       Assignability
of Agreement. The Agreement and the Investor’s rights, obligations and interest under the Agreement, including the Terms
and Conditions for Purchase of Securities, are not transferable or assignable by the Investor.


 


 




     


     


    

 


EXHIBIT A



MOLECULIN BIOTECH, INC.



INVESTOR QUESTIONNAIRE


 


Pursuant to Section 3 of Annex I to the Agreement,
please provide us with the following information:


 


 





	1.	The exact name that your Shares and Warrants are to be registered in.  You may use a nominee name if appropriate:	
	 	 	 
	2.	The relationship between the Investor and the registered holder listed in response to item 1 above:	
	 	 	 
	3.	The mailing address of the registered holder listed in response to item 1 above:	
	 	 	 
	4.	The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above:	
	 	 	 
	5.	Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained):	
	 	 	 
	6.	DTC Participant Number:	
	 	 	 
	7.	Name of Account at DTC Participant being credited with the Shares:	
	 	 	 
	8.	Account Number at DTC Participant being credited with the Shares:	




 


 




     


     


    

 


EXHIBIT B



FORM OF WARRANT