Exhibit 10.1


 


Execution Version


 


ALLARITY THERAPEUTICS, INC.


 


SECURED
NOTE PURCHASE AGREEMENT


 


This Secured Note
Purchase Agreement dated as of November 22, 2022 (this “Agreement”), is entered into by and among Allarity Therapeutics,
Inc. (the “Company”), and the entity listed on the schedule of investors attached hereto as Schedule I
(the “Investor”).


 


RECITALS


 


A. The
Company has authorized the sale and issuance of three secured promissory notes, the first issued at the Initial Closing, as defined below,
in an aggregate principal amount of $350,000 with respect to a new loan funded at the Initial Closing, the second also issued at the Initial
Closing in the principal amount of $1,666,640 which represents the payment of $1,666,640 due to 3i, LP in Alternative Conversion Floor
Amounts that began to accrue on July 14, 2022, and the third issued at the “Subsequent Closing, as defined below, in an aggregate
principal amount of $650,000 with respect to a new loan funded at the Subsequent Closing, subject to the terms and conditions set forth
in this Agreement.


 


B. On
the terms and subject to the conditions set forth herein, the Investor is willing to purchase from the Company, and the Company is willing
to sell to the Investor, the secured promissory notes.


 


C. The
secured promissory notes will be secured for the benefit of the Investor in accordance with the terms of the Security Agreement, in substantially
the form attached hereto as Exhibit B (the “Security Agreement”).


 


D. Capitalized
terms not otherwise defined herein shall have the meaning set forth in the form of Note (as defined below) attached hereto as Exhibit
A.


 


AGREEMENT


 


NOW THEREFORE, in
consideration of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to
be legally bound, hereby agree as follows:


 


 1. Funds; The Notes; Use of Proceeds.




 


(a) Issuance
of Notes. At the applicable Closing (as defined below), and subject to the terms and conditions of Section 2 below, the
Company agrees to issue and sell, subject to the terms and conditions hereof, and the Investor agrees to purchase, the secured
promissory notes in the form of Exhibit A hereto (each, a “Note” and, collectively, the
“Notes”) in the principal amounts of $350,000 and $1,666,640 at the Initial Closing, and a Note in the
principal amount of $650,000 at the Subsequent Closing as more specifically set forth on Schedule I with respect to such
Closing. The Indebtedness evidenced by the Notes shall be senior in right of payment to all of the Company’s other
Indebtedness (as defined below).


 


(b) Use
of Proceeds. The proceeds of the sale and issuance of the Notes shall be used, after payment of transaction expenses, for the Company’s
re-audit of its consolidated financial statements for the fiscal year ended 2021, the repayment of $1,666,640 due to 3i, LP in Alternative
Conversion Floor Amounts that began to accrue on July 14, 2022, and for working capital and general corporate purposes.


 




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 2. Closings; Delivery.




 


(a) Initial
Closing. The initial sale and purchase of the Notes set forth on Schedule I under the table titled “Initial Closing”
shall take place at a closing (a “Closing”) to be held at such place and time as the Company and the Investor
may determine (the “Closing Date”). If there is more than one Closing, the term “Closing”
shall apply to each such closing unless otherwise specified herein and the term “Closing Date” shall apply to
the date of each such Closing


 


(b) Subsequent
Closing. After the initial Closing, upon (i) confirmation that a registration statement on a Form S-1 has been filed with the U.S.
Securities and Exchange Commission (the “SEC”) and is currently awaiting effectiveness, relating to a confidentially
marketed public offering (a “CMPO”), and (ii) approval by the Company’s shareholders of an increase in authorized
common stock in an amount sufficient to cover the CMPO, the Company shall sell, and the Investor shall purchase, on the same terms and
conditions as those contained in this Agreement, the additional Note set forth on Schedule I under the table titled “Subsequent
Closing.”


 


(c) Delivery.
At each Closing, the Company will deliver to the Investor the respective Notes to be purchased by the Investor at such Closing against
receipt by the Company of the corresponding purchase price set forth on Schedule I hereto with respect to such Closing (the “Purchase
Price”). Each of the Notes will be registered in the Investor’s name in the Company’s records..


 


3. Representations
and Warranties of the Company. Except as otherwise set forth herein or as set forth on the Disclosure Schedule, attached as Schedule
II, delivered to the Investor at the applicable Closing (the “Disclosure Schedule”), the Company represents
and warrants to the Investor that as of each Closing Date:


 


(a) Organization,
Valid Existence and Good Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company has the requisite corporate power and authority to own its properties and assets and to carry
on its business as presently conducted. The Company is presently qualified to do business as a foreign corporation in each jurisdiction
where the failure to be so qualified could reasonably be expected to have a material adverse effect on the Company’s financial condition
or business.


 


(b) Authorization.
All corporate action on the part of the Company and its directors necessary for the performance of the Company’s obligations under
this Agreement, the Security Agreement and the Notes (collectively, the “Transaction Documents”) will be taken
prior to the Closing. This Agreement and the Notes when issued pursuant to the terms hereof, will be valid, binding and enforceable obligations
of the Company, subject to the laws of general application relating to bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors’ rights generally and general principles of equity.


 


(c) Non-Contravention.
The execution and delivery by the Company of the Transaction Documents and the performance and consummation of the transactions
contemplated hereby and thereby do not (i) violate the Company’s certificate of incorporation or bylaws, each as amended to
date (“Charter Documents”), or any material judgment, order, writ, decree, statute, rule or regulation
applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other
person or entity to accelerate (whether after the giving of notice or lapse of time or both), any material mortgage, indenture,
agreement, instrument or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or
imposition of any lien upon any property, asset or revenue of the Company (other than any lien or encumbrance arising under the
Transaction Documents) or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.


 






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(d) Approvals.
No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person
(including, without limitation, the stockholders of any Person) is required in connection with the execution and delivery of this Agreement
and the Notes and the performance and consummation of the transactions contemplated hereby. “Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, or any other entity
and any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state, local, municipal,
foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department,
official, or entity and any court or other tribunal), multi-national organization or body; or body exercising, or entitled to exercise,
any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality
of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international organization
or any of the foregoing.


 


(e) Intellectual
Property. To the Company’s knowledge, the Company owns or possesses, directly or indirectly, sufficient legal rights to all
patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property
rights necessary for its business without any conflict with, or infringement of the rights of, others.


 


(f) Litigation.
Except as set forth in Item 3(f) of the Disclosure Schedule, no actions (including, without limitation, derivative actions), suits,
proceedings or investigations are pending or, to the knowledge of the Company, threatened against the Company at law or in equity in any
court or before any other governmental authority that if adversely determined (i) would (alone or in the aggregate) result in a material
liability or (ii) seeks to enjoin, either directly or indirectly, the execution, delivery or performance by the Company of the Transaction
Documents or the transactions contemplated hereby and thereby.


 


(g) Taxes.
Except as set forth in Item 3(g) of the Disclosure Schedule, there are no federal, state, county, local or foreign taxes due and
payable by the Company which have not been timely paid. There are no accrued and unpaid federal, state, country, local or foreign taxes
of the Company which are due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports
by any applicable federal, state, local or foreign governmental agency. The Company has duly and timely filed all federal, state, county,
local and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations
with respect to taxes for any year.


 


(h) No
Indebtedness. Except as set forth in Item 3(h) of the Disclosure Schedule and other than the Notes, the Company does not have
any indebtedness for money borrowed or any other secured indebtedness or any Contingent Obligations related thereto (“Indebtedness”).
“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that
Person with respect to any Indebtedness of another Person if the primary purpose or intent of the Person incurring such liability, or
the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto.


 


(i) No
“Bad Actor” Disqualification. The Company has exercised reasonable care, in accordance with Securities and Exchange
Commission rules and guidance, to determine whether any Covered Person (as defined below) is subject to any of the “bad
actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act (as defined below)
(“Disqualification Events”). To the Company’s knowledge, no Covered Person is subject to a
Disqualification Event, except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The
Company has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act.
“Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act, including the
Company; any predecessor or affiliate of the Company; any director, executive officer, other officer participating in the offering,
general partner or managing member of the Company; any beneficial owner of 20% or more of the Company’s outstanding voting
equity securities, calculated on the basis of voting power; any promoter (as defined in Rule 405 under the Securities Act) connected
with the Company in any capacity at the time of the sale of the Notes; and any person that has been or will be paid (directly or
indirectly) remuneration for solicitation of purchasers in connection with the sale of the Notes (a
“Solicitor”), any general partner or managing member of any Solicitor, and any director, executive officer
or other officer participating in the offering of any Solicitor or general partner or managing member of any Solicitor.


 






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4. Representations
and Warranties of Investor. The Investor represents and warrants to the Company upon the acquisition of a Note as follows:


 


(a) Binding
Obligation. The Investor has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement and the Transaction Documents constitute valid and binding obligations of the Investor, enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement
of creditors’ rights generally and general principles of equity.


 


 (b) Securities Law Compliance.




 


(i) The
Investor has been advised that the Notes have not been registered under the Securities Act of 1933, as amended (the “Securities
Act”), or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act
and applicable state securities laws or unless an exemption from such registration requirements is available. The Investor is aware that
the Company is under no obligation to effect any such registration with respect to the Notes or to file for or comply with any exemption
from registration. The Investor has not been formed solely for the purpose of making this investment and is purchasing the Notes to be
acquired by the Investor hereunder for its own account for investment, not as a nominee or agent, and not with a view to, or for resale
in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same.


 


(ii) The
Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and
risks of such investment, is able to incur a complete loss of such investment without impairing the Investor’s financial condition
and is able to bear the economic risk of such investment for an indefinite period of time.


 


(iii) The
Investor is an “accredited investor” as such term is defined in Rule 501 of Regulation D under the Securities Act and shall
submit to the Company such further assurances of such status as may be reasonably requested by the Company.


 


(iv) The
residency of the Investor (or, in the case of a partnership or corporation, such entity’s principal place of business) is correctly
set forth beneath the Investor’s name on Schedule I hereto.








 


(c) Access
to Information. The Investor acknowledges that the Company has given the Investor access to the corporate records and accounts of
the Company and to all material information in its possession relating to the Company, has made its officers and representatives available
for interview by the Investor, and has furnished the Investor with all documents and other information required for the Investor to make
an informed decision with respect to the purchase of the Notes. The foregoing, however, does not limit or modify the representations and
warranties of the Company in Section 3 of this Agreement or the right of the Investor to rely thereon.


 






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(d) Legal
Counsel. The Investor has had the opportunity to review this Agreement, the exhibits and schedules attached hereto and the transactions
contemplated by this Agreement with its own legal counsel.


 


(e) Brokers
or Finders. The Investor has not engaged any brokers, finders or agents, and neither the Company nor the Investor has, nor will, incur,
directly or indirectly, as a result of any action taken by the Investor, any liability for s’ fees or agents’ commissions
or any similar charges in connection with the transactions contemplated by this Agreement.


 


(f) Tax
Advisors. The Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this
investment and the transactions contemplated by this Agreement. The Investor understands that it (and not the Company) shall be responsible
for its own tax liability that may arise as a result of this investment and the transactions contemplated by this Agreement.


 


(g) No
“Bad Actor” Disqualification Events. Neither (i) the Investor, (ii) any of its directors, executive officers, other officers
that may serve as a director or officer of any company in which it invests, general partners or managing members, nor (iii) any beneficial
owner of any of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by the Investor
is subject to any Disqualification Event (as defined in Section 3(i)), except for Disqualification Events covered by Rule 506(d)(2)
or (d)(3) under the Securities Act and disclosed reasonably in advance of the Closing in writing in reasonable detail to the Company.


 


5. Conditions
to Closing of the Investor. The Investor’s obligations at the Closing are subject to the fulfillment, on or prior to the
Closing Date, of all of the following conditions, any of which may be waived in writing in whole or in part by the Investor:


 


(a) Representations
and Warranties. Subject to the Disclosure Schedule, including any update thereto delivered to the Investor prior to or at the time
the Investor executes this Agreement, the representations and warranties made by the Company in Section 3 hereof shall have been
true and correct when made, and shall be true and correct on any Closing Date.


 


(b) Governmental
Approvals and Filings. Except for any notices required or permitted to be filed after the Closing Date with certain federal and state
securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance
of the Notes.


 


(c) Legal
Requirements. At the Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Notes shall be legally
permitted by all laws and regulations to which the Investor or the Company are subject.








 


(d) Proceedings
and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents
and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investor.


 


(e) Transaction
Documents. The Company shall have duly executed and delivered to the Investor this Agreement, the Security Agreement, and each Note
issued hereunder, and the Company will take all actions reasonably requested by the Investor necessary to perfect the Investor’s
security interest in the collateral, in accordance with the terms of this Agreement and the Security Agreement


 






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6. Conditions
to Obligations of the Company. The Company’s obligation to issue and sell the Notes at the Closing is subject to the fulfillment,
on or prior to the Closing Date, of the following conditions, any of which may be waived in whole or in part by the Company:


 


(a) Representations
and Warranties. The representations and warranties made by the Investor in Section 4 hereof shall be true and correct when
made, and shall be true and correct on the Closing Date.


 


(b) Governmental
Approvals and Filings. Except for any notices required or permitted to be filed after the Closing Date with certain federal and state
securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance
of the Notes.


 


(c) Legal
Requirements. At the Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Notes shall be legally
permitted by all laws and regulations to which the Investor or the Company are subject.


 


(d) Purchase
Price. The Investor shall have delivered to the Company the Purchase Price in respect of the Note being purchased by the Investor
referenced in Section 2 hereof.


 


 7. Miscellaneous.




 


(a) Waivers
and Amendments. Any provision of this Agreement and the Notes may be amended, waived or modified only upon the written consent of
the Company and the Investor.


 


(b) Governing
Law. This Agreement shall be governed by the laws of the State of Delaware, without reference to principles of choice of law.


 


(c) Survival.
The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement and
the Closing until the first anniversary of the applicable Closing Date.


 


(d) Successors
and Assigns. Subject to the restrictions on transfer described in Sections 7(e) and 7(e) below, the rights and obligations
of the Company and the Investor shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the
parties.


 


(e) Registration,
Transfer and Replacement of the Notes. The Notes issuable under this Agreement shall be registered notes. The Company will keep,
at its principal executive office, books for the registration and registration of transfer of the Notes. Prior to presentation of
any Note for registration of transfer, the Company shall treat the Person in whose name such Note is registered as the owner and
holder of such Note for all purposes whatsoever, whether or not such Note shall be overdue, and the Company shall not be affected by
notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in any Note, the holder of any Note, at
its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive
office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor one or
more new Note(s), each in the principal requested by such holder, dated the date to which interest shall have been paid on the Note
so surrendered or, if no interest shall have yet been so paid, dated the date of the Note so surrendered and registered in the name
of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as
the then unpaid principal amount of the Note so surrendered. Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note and (i) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it; or (ii) in the case of mutilation, upon surrender thereof, the Company, at its expense,
will execute and deliver in lieu thereof a new Note executed in the same manner as the Note being replaced, in the same principal
amount as the unpaid principal amount of such Note and dated the date to which interest shall have been paid on such Note or, if no
interest shall have yet been so paid, dated the date of such Note.


 






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(f) Assignment
by the Company. The rights, interests or obligations hereunder may not be assigned, by operation of law or otherwise, in whole or
in part, by the Company without the prior written consent of the Investor.


 


(g) Entire
Agreement. This Agreement together with the other Transaction Documents constitute and contain the entire agreement among the Company
and Investor and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties,
whether written or oral, respecting the subject matter hereof. No party shall be liable or bound to any other party in any manner with
regard to the subjects hereof or thereof by any warranties, representations or covenants except as specifically set forth herein or therein.


 


(h) Notices.
All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and
faxed, mailed or delivered to each party as follows: (i) if to the Investor, at the Investor’s address or facsimile number set forth
in the Schedule of Investors attached as Schedule I, or at such other address as the Investor shall have furnished the Company
in writing, or (ii) if to the Company, at the Company’s current address for its principal offices, Attn: Chief Executive Officer,
or at such other address or facsimile number as the Company shall have furnished to the Investor in writing. All such notices and communications
will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being
delivered by facsimile (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier
service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid.


 


(i) Expenses.
Each party shall be responsible for its own costs and expenses that it incurs with respect to the negotiation, execution, delivery, and
performance of this Agreement.


 


(j) Severability.
If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


 


(k) Counterparts.
This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.





 


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


 




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IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first
written above.


 





	 	COMPANY:
	 	 
	 	ALLARITY THERAPEUTICS, INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	  /s/ James G. Cullem
	 	Name:	James G. Cullem, J.D.
	 	Title: 	Chief Executive Officer


 


[Company Signature Page
to Secured Note Purchase Agreement]




     


     


    

 


IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first
written above.


 





	 	INVESTOR:
	 	 	 
	 	3i, L.P.,
	 	a Delaware limited partnership
	 	 	 
	 	By:	  /s/ Maier Tarlow
	 	Name: 	Maier Tarlow
	 	Title: 	Manager of the GP



 


[Investor Signature Page
to Secured Note Purchase Agreement]




     


     


    

 


SCHEDULE I


 


SCHEDULE OF INVESTORS


 


 


 


 


 


 


 


 






     


     


    

 








SCHEDULE II


 


DISCLOSURE SCHEDULE


 


 


 


 


 


 


 


 






     


     


    

 


Exhibit A


 


FORM OF NOTE


 


 


 


 


 


 


 


 




     


     


    

 


Exhibit B


 


SECURITY AGREEMENT