Exhibit
10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of May 15, 2022 by and among Celcuity
Inc., a Delaware corporation (the “Company”), the Investors identified on Exhibit A attached hereto (each an
“Investor” and collectively the “Investors”).


 


A.
The Company and each Investor is executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”) and/or Rule 506 of Regulation
D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act.


 


B.
The Investors, severally and not jointly, wish to purchase from the Company, and the Company wishes to sell and issue to the Investors,
upon the terms and subject to the conditions stated in this Agreement, (i) shares (the “Common Shares”) of the Company’s
Common Stock, par value $0.001 per share (the “Common Stock”), (ii) shares (the “Preferred Shares”)
of Preferred Stock (as defined below), and (iii) warrants to purchase shares of Preferred Stock, in the form attached hereto as Exhibit
B (the “Warrants” and, together with the Common Shares and Preferred Shares, the “Securities”).


 


C.
Contemporaneously with the sale of the Securities, the parties hereto will execute and deliver a Registration Rights Agreement, in the
form attached hereto as Exhibit C (the “Registration Rights Agreement”), pursuant to which the Company will
agree to provide certain registration rights under the 1933 Act, and the rules and regulations promulgated thereunder, and applicable
state securities laws.


 


In
consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:


 


1.
Definitions. For the purposes of this Agreement,
the following terms shall have the meanings set forth below:


 


“Affiliate”
means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is controlled
by, or is under common Control with, such Person.


 


“Authorized
Share Approval” means receipt of the stockholder approval required to effect the Authorized Share Increase and the filing of
an amendment to the Company’s certificate of incorporation for the Authorized Share Increase.


 


“Authorized
Share Increase” means an increase in the aggregate number of shares of capital stock and the number of shares of Common Stock
the Company has authority to issue to allow for issuance of the Common Warrant Shares (assuming the Warrants are exercisable for Common
Stock and are exercisable in full without regard to any exercise limitations therein) and/or Conversion Shares (assuming the shares of
Preferred Stock are convertible in full without regard to any conversion limitations in the Certificate of Designations).


 


“Business
Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of
business.


 


“Certificate
of Designations” means the Certificate of Designations, in the form attached hereto as Exhibit D, setting forth the
rights, preferences and privileges of the Preferred Stock.


 




    	 



     


    

 


“Closing”
has the meaning set forth in Section 3.1.


 


“Closing
Date” has the meaning set forth in Section 3.1.


 


“Common
Shares” has the meaning set forth in the Recitals.


 


“Common
Warrant Shares” means shares of Common Stock issuable upon exercise of the Warrants, if the Warrants are exercisable for Common
Stock.


 


“Company’s
Knowledge” means the actual knowledge of any executive officer (as defined in Rule 405 under the 1933 Act) of the Company after
due inquiry of all employees in the direct reporting line of such officer.


 


“Company
Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the
Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).


 


“Control”
(including the terms “controlling”, “controlled by” or “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.


 


“Conversion
Shares” means shares of Common Stock issuable upon conversion of Preferred Shares or Preferred Warrant Shares, in accordance
with the terms set forth in the Certificate of Designations.


 


“EDGAR
System” has the meaning set forth in Section 4.6.


 


“Environmental
Laws” has the meaning set forth in Section 4.16.


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.


 


“FDA”
has the meaning set forth in Section 4.28.


 


“Funding
Trigger Date” means the date on which the Company notifies the Investors that a patient enrolled in any treatment arm of the
Company’s Phase 3 study (VIKTORIA-1) has received their first dose of treatment at a clinical site located in the United States,
provided that such date must occur on or before December 31, 2022.


 


“GAAP”
has the meaning set forth in Section 4.18.


 


“Intellectual
Property” means all patents, patent applications, registered and unregistered trademarks, trademark applications, registered
and unregistered service marks, service mark applications, trade names, copyrights, trade secrets, licenses, domain names, information
and proprietary rights and processes, and all other intellectual property rights in any jurisdiction.


 


“Investor
Questionnaire” means the Investor Questionnaire in the form attached hereto as Appendix I (or similar form reasonably satisfactory
to the Company and sufficient in substance for the Company to obtain the information necessary to effect the transactions contemplated
by the Transaction Documents).


 




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“Material
Adverse Effect” means a circumstance that would have or reasonably be expected to result in, individually or in the aggregate,
a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise), earnings, business,
prospects or properties of the Company, (ii) the legality or enforceability of any of the Transaction Documents or (iii) the ability
of the Company to perform its obligations under the Transaction Documents; provided, however, that in no event shall any
of the following occurring after the date hereof, alone or in combination, be deemed to constitute a Material Adverse Effect, or be taken
into account in determining whether a Material Adverse Effect has occurred: (1) any adverse effect resulting directly or indirectly from
general business or economic conditions, except to the extent such general business or economic conditions have a materially disproportionate
effect on the Company as compared to companies in the Company’s industry, (2) any change in the Company’s stock price or
trading volume (provided that the underlying cause of such change is not exempt from constituting a Material Adverse Effect, or being
taken into account in determining whether a Material Adverse Effect has occurred), or (3) any effect caused by the announcement or pendency
of the transactions contemplated by the Transaction Documents, or the identity of any Investor or any of its Affiliates as the purchaser
in connection with the transactions contemplated by this Agreement or the Registration Rights Agreement.


 


“Material
Contract” means any contract, instrument or other agreement to which the Company is a party or by which it is bound which is
material to the business of the Company and has been or was required to have been filed as an exhibit to the SEC Filings pursuant to
Item 601(b)(10) of Regulation S-K.


 


“Nasdaq”
means The Nasdaq Capital Market.


 


“Person”
means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint
venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed
herein.


 


“Placement
Agent” means Jefferies LLC, whom the Company has engaged as its exclusive placement agent in connection with the offering of
the Securities.


 


“Preferred
Shares” has the meaning set forth in the Recitals.


 


“Preferred
Stock” means the Series A Convertible Preferred Stock, par value $0.001 per share, of the Company, having the rights, preferences
and privileges specified in the Certificate of Designations, which will be convertible into Conversion Shares in accordance with the
terms set forth in the Certificate of Designations.


 


“Preferred
Warrant Shares” means shares of Preferred Stock issuable upon exercise of the Warrants, if the Warrants are exercisable for
Preferred Stock.


 


“Press
Release” has the meaning set forth in Section 10.7.


 


“Registration
Rights Agreement” has the meaning set forth in the Recitals.


 


“Required
Investors” means the holders of a majority in interest of the Securities based on the initial Subscription Amounts (including,
for the avoidance of doubt, the Preferred Shares), for so long as such shares remain “Registrable Securities” under
the Registration Rights Agreement.


 


“SEC
Filings” has the meaning set forth in Section 4.


 




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“Securities”
has the meaning set forth in the Recitals.


 


“Selling
Stockholder Questionnaire” means the Selling Stockholder Notice and Questionnaire, in the form attached hereto as Appendix
II (or similar form reasonably satisfactory to the Company and sufficient in substance for the Company to obtain the information necessary
to effect the transactions contemplated by the Transaction Documents).


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the 1934 Act (but shall not be deemed
to include the location and/or reservation of borrowable shares of Common Stock).


 


“Subscription
Amount” means, as to an Investor, the aggregate amount to be paid for the Common Shares and Preferred Shares purchased hereunder
as specified opposite such Investor’s name on Exhibit A attached hereto, under the column entitled “Aggregate Purchase
Price.”


 


“Trading
Day” means a day on which Nasdaq is open for trading.


 


“Transaction
Documents” means this Agreement and the Registration Rights Agreement.


 


“Transfer
Agent” has the meaning set forth in Section 8.6.


 


“Warrants”
has the meaning set forth in the Recitals.


 


“Warrant
Shares” means Common Warrant Shares, Preferred Warrant Shares or Conversion Shares, as applicable.


 


“1933
Act” has the meaning set forth in the Recitals.


 


“1934
Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated
thereunder.


 


2.
Purchase and Sale of the Securities.


 


2.1.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company will issue and sell to the Investors,
and the Investors will purchase, severally and not jointly, (i) the number of shares of Common Stock set forth opposite the name of such
Investor under the heading “Number of Common Shares to be Purchased” on Exhibit A attached hereto (the “Schedule
of Investors”) in exchange for consideration equal to $5.75 per Common Share, (ii) the number of shares of Preferred Stock
set forth opposite the name of such Investor under the heading “Number of Preferred Shares to be Purchased” on the Schedule
of Investors in exchange for consideration equal to $57.50 per Preferred Share, and (iii) Warrants to purchase such number of Preferred
Warrant Shares as set forth opposite the name of such Investor under the heading “Number of Preferred Warrant Shares Underlying
Warrants” on the Schedule of Investors, each with an exercise price of $80.50 per Preferred Warrant Share.


 


2.2.
Notwithstanding anything to the contrary herein and the Investors’ respective subscription amounts set forth on the Schedule of
Investors, (a) the number of Common Shares purchased by an Investor (and its Affiliates) at the Closing hereunder shall not, when aggregated
with all other shares of Common Stock owned by such Investor (and its Affiliates) at such time, result in such Investor beneficially
owning (as determined in accordance with Section 13(d) of the Exchange Act) in excess of 9.99% of the Common Stock issued and outstanding
immediately prior to the Closing (the “Beneficial Ownership Maximum”), and (b) to the extent that an Investor determines,
in its sole discretion, that pursuant to the transactions contemplated hereby such Investor would beneficially own Common Stock of the
Company in excess of the Beneficial Ownership Maximum, then such Investor’s subscription amount, to the extent that it would otherwise
exceed the Beneficial Ownership Maximum immediately prior to the Closing, shall be automatically adjusted, to the extent necessary, to
provide for the Investor’s purchase of Preferred Shares in lieu of Common Shares.


 




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3.
Closing.


 


3.1.
Upon the satisfaction or waiver of the conditions set forth in Section 6, the closing of the purchase and sale of the Securities pursuant
to this Agreement (the “Closing”) shall be held no later than 10:00 AM (Eastern Time) on the second (2nd) Trading
Day following the Funding Trigger Date, at the offices of Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis,
MN 55402, or on such other date and place as may be agreed to by the Company and the Investors (the “Closing Date”).
At or prior to the Closing, each Investor shall execute any related agreements or other documents required to be executed hereunder,
dated on or before the Closing Date.


 


3.2.
On the Closing Date, each Investor shall deliver or cause to be delivered to the Company the Subscription Amount via wire transfer of
immediately available funds pursuant to the wire instructions delivered to such Investor by the Company reasonably in advance of the
Closing Date.


 


3.3.
At or before the Closing, the Company shall deliver or cause to be delivered to each Investor:


 


(a)
a number of Common Shares, registered in the name of the Investor (or its nominee in accordance with its delivery instructions), in the
amount set forth opposite the name of such Investor under the heading “Number of Common Shares to be Purchased” in the Schedule
of Investors, with such Common Shares to be issued in book entry form or, upon request of an Investor, certificated form;


 


(b)
a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, at the Closing, the number of
Common Shares to be purchased by such Investor pursuant to this Agreement in accordance with Section 2.1, registered in the name of such
Investor, in book-entry form;


 


(c)
a number of Preferred Shares, registered in the name of the Investor (or its nominee in accordance with its delivery instructions), in
the amount set forth opposite the name of such Investor under the heading “Number of Preferred Shares to be Purchased” in
the Schedule of Investors, with such Preferred Shares to be issued in book entry form or, upon request of an Investor, certificated form;


 


(d)
a Warrant, registered in the name of the Investor, to purchase a number of Preferred Warrant Shares in the amount set forth opposite
the name of such Investor under the heading “Number of Preferred Warrant Shares Underlying Warrants” in the Schedule of Investors,
with such Warrants to be issued in definitive form;


 


(e)
a legal opinion of Fredrikson & Byron, P.A., in a form reasonably acceptable to the Investors and the Placement Agent, dated as of
the Closing Date, executed by such counsel and delivered to the Investors and the Placement Agent; and


 




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(f)
the Registration Rights Agreement, in the form of Exhibit C, executed by a duly authorized officer of the Company.


 


4.
Representations and Warranties of the Company.
The Company hereby represents and warrants to the Investors and the Placement Agent that, except as otherwise described in the Company’s
filings pursuant to the 1934 Act (collectively, the “SEC Filings”), which qualify these representations and warranties
in their entirety, as of the date hereof:


 


4.1.
Organization, Good Standing and Qualification. The Company is an entity duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, with the requisite corporate power and authority to own or lease and use its properties and
assets, to execute and deliver the Transaction Documents, to carry out the provisions of the Transaction Documents, to issue and sell
the Securities and to carry on its business as presently conducted as described in the SEC Filings. The Company has no subsidiaries.
The Company is not in violation or default in any material respect of any of the provisions of its certificate of incorporation or bylaws.
The Company is duly qualified to do business as a foreign entity and is in good standing (to the extent such concept exists in the relevant
jurisdiction) in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification
necessary, except to the extent any failure to so qualify has not had and would not have a Material Adverse Effect.


 


4.2.
Authorization. The Company has the requisite corporate power and authority and has taken all requisite corporate action necessary
for, and no further action on the part of the Company, its officers, directors and stockholders is necessary for, (i) the authorization,
execution and delivery of the Transaction Documents, (ii) the authorization of the performance of all obligations of the Company hereunder
or thereunder, and (iii) the authorization, issuance and delivery of the Common Shares, the Preferred Shares, the Warrants and the Warrant
Shares (except for, with respect to the Preferred Shares, the Warrants and the Warrant Shares, as applicable, the Authorized Share Approval
and the filing of the Certificate of Designations with the Secretary of State of the State of Delaware). Each of the Transaction Documents
has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Investors,
constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights,
(b) general principles of equity that restrict the availability of equitable remedies and (c) to the extent that the enforceability of
indemnification provisions may be limited by applicable laws.


 


4.3.
Capitalization. As of December 31, 2021, the capitalization of the Company was in all material respects as set forth in the Company’s
Annual Report on Form 10-K filed with the SEC for the year ended December 31, 2021. Since December 31, 2021, no steps have been taken
by the Company to authorize or effect any amendment or other modification to the authorized capital stock of the Company other than (i)
an amendment to the Company’s certificate of incorporation, filed with the Secretary of State of the State of Delaware on May 12,
2022, increasing the aggregate number of shares of capital stock the Company has authority to issue to 32,500,000 shares and the number
of shares of Common Stock the Company has authority to issue to 30,000,000 shares, and (ii) the adoption of the Certificate of Designations,
to be filed within one Business Day after the date hereof with the Secretary of State of the State of Delaware. There are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in
this Agreement and the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any
similar plan or agreement. Since December 31, 2021, the Company has not issued any capital stock, other than pursuant to the exercise
of warrants outstanding as of such date or the exercise of employee stock options or settlement of restricted stock units under the Company’s
equity incentive plans. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly
issued and are fully paid and nonassessable, none of such shares were issued in violation of any pre-emptive rights and such shares were
issued in compliance with applicable state and federal securities law and any rights of third parties. No Person is entitled to pre-emptive
or similar statutory or contractual rights with respect to the issuance by the Company of any securities of the Company, including without
limitation, the Common Shares, the Preferred Shares, the Warrants and the Warrant Shares. There are no outstanding warrants, options,
convertible securities or other rights, agreements or arrangements of any character under which the Company is or may be obligated to
issue any equity securities of any kind, except as contemplated by this Agreement or as previously disclosed in the Company’s SEC
Filings. Except for the Registration Rights Agreement, there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any of the security holders of the Company relating to the
securities of the Company held by them. Except as provided in the Registration Rights Agreement, no Person has the right to require the
Company to register any securities of the Company under the 1933 Act, whether on a demand basis or in connection with the registration
of securities of the Company for its own account or for the account of any other Person. Neither issuance and sale of the Securities
hereunder nor the issuance of the Warrant Shares upon exercise of the Warrants will obligate the Company to issue shares of Common Stock
or other securities to any other Person (other than the Investors) or will result in the adjustment of the exercise, conversion, exchange
or reset price of any outstanding security. The Company does not have outstanding stockholder purchase rights or “poison pill”
or any similar arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of
certain events.


 




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4.4.
Valid Issuance. The Common Shares have been duly and validly authorized and, when issued and paid for pursuant to this Agreement,
will be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions (other than those
created by the Investors), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities
laws. The Warrants have been duly and validly authorized and, when issued pursuant to this Agreement, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms. Upon filing of the Certificate of Designations with the Secretary
of State of the State of Delaware, the Preferred Shares and the Preferred Warrant Shares will have been duly and validly authorized and
reserved for issuance, and the Preferred Shares, when issued and paid for pursuant to this Agreement, and the Preferred Warrant Shares,
upon exercise of the Warrants for Preferred Warrant Shares in accordance with their terms, including the payment of any exercise price
therefor, will be validly issued, fully paid and nonassessable and will be free and clear of all encumbrances and restrictions (other
than those created by the Investors), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable
securities laws. Upon effectiveness of the Authorized Share Approval, the Common Warrant Shares and the Conversion Shares will have been
duly and validly authorized and reserved for issuance and, upon exercise of the Warrants for Common Warrant Shares in accordance with
their terms, including the payment of any exercise price therefor, or conversion of the Preferred Shares or Preferred Warrant Shares
into Conversion Shares in accordance with the terms of the Certificate of Designations, will be validly issued, fully paid and nonassessable
and will be free and clear of all encumbrances and restrictions (other than those created by the Investors), except for restrictions
on transfer set forth in the Transaction Documents or imposed by applicable securities laws.


 


4.5.
Consents. The execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale
of the Securities require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official
other than (a) filings that have been made pursuant to applicable state securities laws and the rules and regulations of Nasdaq, (b)
post-sale filings pursuant to applicable state and federal securities laws, which the Company undertakes to file within the applicable
time periods, (c) filing of the Certificate of Designations, (d) the Authorized Share Approval, and (e) the registration statement required
to be filed by the Registration Rights Agreement. The Company has taken all action necessary to exempt (i) the issuance and sale of the
Securities and (ii) the other transactions contemplated by the Transaction Documents from the provisions of any stockholder rights plan
or other “poison pill” arrangement, any anti-takeover, business combination or control share law or statute binding on the
Company or to which the Company or any of its assets and properties is subject that is or could reasonably be expected to become applicable
to the Investors as a result of the transactions contemplated hereby, including without limitation, the issuance of the Common Shares
and Preferred Shares and the ownership, disposition or voting of the Common Shares or Preferred Shares by the Investors or the exercise
of any right granted to the Investors pursuant to this Agreement or the other Transaction Documents. The issuance and sale of the Securities
hereunder does not contravene the rules and regulations of Nasdaq.


 




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4.6.
Delivery of SEC Filings. True and complete copies of the SEC Filings have been made available by the Company to the Investors
through the Electronic Data Gathering, Analysis, and Retrieval system (the “EDGAR System”) (other than any information
for which the Company has received confidential treatment from the SEC).


 


4.7.
No Material Adverse Change. Since December 31, 2021, except as specifically set forth in a subsequent SEC Filing, there has not
been:


 


(a)
any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements
included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, except for changes in the ordinary course
of business which have not had and would not have a Material Adverse Effect;


 


(b)
any declaration or payment by the Company of any dividend, or any authorization or payment by the Company of any distribution, on any
of the capital stock of the Company, or any redemption or repurchase by the Company of any securities of the Company;


 


(c)
any material damage, destruction or loss, whether or not covered by insurance, to any assets or properties of the Company;


 


(d)
any waiver, not in the ordinary course of business, by the Company of a material right or of a material debt owed to it;


 


(e)
any satisfaction or discharge of a material lien, claim or encumbrance or payment of any obligation by the Company, except in the ordinary
course of business;


 


(f)
any change or amendment to the Company’s certificate of incorporation or Bylaws, or termination of or material amendment to any
contract of the Company that the Company is or was required to file with the SEC pursuant to Item 601(b)(10) of Regulation S-K, other
than as described in clauses (i) and (ii) of Section 4.3 hereof;


 


(g)
any material labor difficulties or, to the Company’s Knowledge, labor union organizing activities with respect to employees of
the Company;


 


(h)
any material transaction entered into by the Company other than in the ordinary course of business;


 


(i)
the loss of the services of any executive officer (as defined in Rule 405 under the 1933 Act) of the Company; or


 




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(j)
any other event or condition that has had or would have a Material Adverse Effect.


 


4.8.
SEC Filings. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under 1933 Act and the 1934 Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof. At
the time of filing thereof, such SEC Filings complied as to form in all material respects with the requirements of the 1933 Act or 1934
Act, as applicable, and, as of their respective dates, did not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading.


 


4.9.
No Conflict, Breach, Violation or Default. The execution, delivery and performance of the Transaction Documents by the Company
and the issuance and sale of the Securities in accordance with the provisions thereof, the issuance of the Warrant Shares upon exercise
of the Warrants and the issuance of the Conversion Shares upon conversion of Preferred Shares or Preferred Warrant Shares will not (i)
conflict with or result in a breach or violation of (a) any of the terms and provisions of, or constitute a default under, the Company’s
certificate of incorporation or bylaws, both as in effect on the date hereof (true and complete copies of which have been made available
to the Investors through the EDGAR System), as amended or supplemented by the documents described in clauses (i) and (ii) of Section
4.3 hereof and, in the case of the Common Warrant Shares and Conversion Shares, subject to the Authorized Share Approval, or (b) any
applicable statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction
over the Company, or any of its assets or properties, or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, result in the creation of any lien, encumbrance or other adverse claim upon any
of the properties or assets of the Company or give to others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any Material Contract except, in the case of clauses (i)(b) and (ii) only, for such conflicts,
breaches, violations and defaults as have not and would not have a Material Adverse Effect. This Section 4.9 does not relate to matters
with respect to tax status, which are the subject of Section 4.11, intellectual property, which are the subject of Section 4.15, and
environmental laws, which are the subject of Section 4.16.


 


4.10.
Compliance. The Company is not (i) in default under or in violation of (and no event has occurred that has not been waived that,
with notice or lapse of time or both, would result in a default by the Company under), nor has the Company received notice of a claim
that it is in default under or that it is in violation of, any Material Contract (whether or not such default or violation has been waived),
(ii) in violation of any judgment, decree or order of any court, arbitrator or governmental body or (iii) in violation of any statute,
rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws
relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters,
except in each case as would not have or result in a Material Adverse Effect.


 


4.11.
Tax Matters. The Company has timely filed all tax returns required to have been filed by the Company with all appropriate governmental
agencies and have paid all taxes shown thereon or otherwise owed by them (whether or not shown on any tax returns). The Company has collected
or withheld all material taxes required to be collected or withheld by applicable laws from employee, shareholders or other third parties
and have timely paid and have timely paid over such withheld amount to the appropriate government agency. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred to in Section 4.18 below in respect of all federal, state
and local and non-United States income and franchise taxes for all periods as to which the tax liability of the Company has not been
finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect. There are no material
tax liens on any assets or property of the Company, and there are no material tax claims pending or, to the Company’s Knowledge,
threatened against the Company or any of its material assets or property.


 




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4.12.
Title to Properties. The Company has good and marketable title to all real properties and all other tangible properties and assets
owned by it, in each case free from liens, encumbrances and defects, except such as would not have a Material Adverse Effect; and the
Company holds any leased real or personal property under valid, subsisting and enforceable leases with which the Company is in compliance
and with no exceptions, except such as would not have a Material Adverse Effect.


 


4.13.
Certificates, Authorities and Permits. The Company possesses adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated by it, except where failure to so possess would not result
in a Material Adverse Effect. The Company has not received any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the Company, would have a Material Adverse Effect.


 


4.14.
Labor Matters.


 


(a)
The Company is not party to or bound by any collective bargaining agreement or other contract with any labor union or other labor organization,
and no employees of the Company are represented by any labor union or other labor organization with respect to their employment.


 


(b)
There are, and for the past three (3) years there have been, no actual or, to the Company’s Knowledge, threatened union organizing
activities, unfair labor practice charges, material labor grievances, material labor arbitrations, strikes, lockouts, work stoppages,
slowdowns, picketing, hand billing or other material labor disputes against or affecting the Company.


 


(c)
The Company is, and for the last three (3) years has been, in compliance in all material respects with all applicable laws respecting
labor, employment and employment practices.


 


(d)
The Company has promptly, thoroughly and impartially investigated all sexual harassment, or other discrimination, retaliation or policy
violation allegations of which it is aware. With respect to each such allegation with potential merit, the Company has taken prompt corrective
action that is reasonably calculated to prevent further improper action.


 


4.15.
Intellectual Property. The Company owns, possesses, licenses or has other rights to use the Intellectual Property necessary or
material for use in connection with its business as currently conducted or currently proposed to be conducted, in each case, as described
in the SEC Filings (collectively, the “Intellectual Property Rights”). There is no pending or, to the Company’s
Knowledge, threatened action, suit, proceeding or claim by any Person that the Company’s business as now conducted infringes or
otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of another or that challenges the validity
or scope of any of the Intellectual Property Rights, including interferences, oppositions, reexaminations or government proceedings.
To the Company’s Knowledge, there is no material infringement by another Person of any of the Intellectual Property Rights. The
Company has taken reasonable security measures to protect the secrecy, confidentiality and value of all of its Intellectual Property
Rights. Each employee and consultant that has developed, conceived or reduced to practice any material Intellectual Property Rights has
assigned to the Company all such Intellectual Property Rights. All licenses or other material agreements under which the Company is granted
rights to Intellectual Property are in full force and effect and, to the Company’s Knowledge, there is no material default by any
other party thereto. The Company has no reason to believe that the licensors under such licenses and other agreements do not have and
did not have all requisite power and authority to grant the rights to the Intellectual Property purported to be granted thereby. None
of the Intellectual Property Rights have been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in
part. There are no liens, security interests or other encumbrances on the Intellectual Property Rights. To the Company’s Knowledge,
each founder and key employee of the Company and each Company employee involved with the development of Intellectual Property Rights
has entered into an invention assignment agreement with the Company. The consummation of the transactions contemplated hereby and by
the other Transaction Documents will not result in the alteration, loss, impairment of or restriction on the Company’s ownership
or right to use any Intellectual Property that is material to the conduct of the Company’s business as currently conducted or currently
proposed to be conducted.


 




    	 	10	 



     


    

  


4.16.
Environmental Matters. Except as would not have a Material Adverse Effect, the Company is not in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “Environmental Laws”), has not released any hazardous substances regulated by Environmental
Law on to any real property that it owns or operates, and has received any written notice or claim it is liable for any off-site disposal
or contamination pursuant to any Environmental Laws; and to the Company’s Knowledge, there is no pending or threatened investigation
that would reasonably be expected to lead to such a claim.


 


4.17.
Legal Proceedings. There are no legal, governmental or regulatory investigations, actions, suits, charges, claims, complaints,
audits, inquiries or proceedings pending or, to the Company’s Knowledge, threatened to which the Company is or may reasonably be
expected to become a party or to which any property of the Company is or may reasonably be expected to become the subject that, individually
or in the aggregate, if determined adversely to the Company, would have a Material Adverse Effect. The SEC has not issued any stop order
or other order suspending the effectiveness of any registration statement filed by the Company under the 1933 Act or the 1934 Act.


 


4.18.
Financial Statements. The financial statements included in each SEC Filing comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected
by a subsequent restatement) and present fairly, in all material respects, the financial position of the Company as of the dates shown
and its results of operations and cash flows for the periods shown, subject in the case of unaudited financial statements to normal,
immaterial year-end audit adjustments, and such financial statements have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis during the periods involved (“GAAP”) (except as may be disclosed
therein or in the notes thereto, and except that the unaudited financial statements may not contain all footnotes required by GAAP, and,
in the case of quarterly financial statements, as permitted by Form 10-Q under the 1934 Act). Except as set forth in the financial statements
of the Company included in the SEC Filings filed prior to the date hereof, the Company has not incurred any liabilities, contingent or
otherwise, except those incurred in the ordinary course of business, consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or in the aggregate, have had or would have a Material Adverse Effect.


 


4.19.
Compliance with Nasdaq Continued Listing Requirements. The Company is in compliance with applicable Nasdaq continued listing requirements.
There are no proceedings pending or, to the Company’s Knowledge, threatened against the Company relating to the continued listing
of the Common Stock on Nasdaq and the Company has not received any notice of, nor to the Company’s Knowledge is there any reasonable
basis for, the delisting of the Common Stock from Nasdaq.


 




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4.20.
Brokers and Finders. Other than the Placement Agent, no Person will have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon the Company or, to the Company’s Knowledge, an Investor
for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of
the Company.


 


4.21.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person acting on its behalf has conducted any
general solicitation or general advertising (as those terms are used in Regulation D) in connection with the offer or sale of any of
the Securities.


 


4.22.
No Integrated Offering. Neither the Company nor any Person acting on its behalf has, directly or indirectly, made any offers or
sales of any Company security or solicited any offers to buy any Company security, under circumstances that would (i) adversely affect
reliance by the Company on Section 4(a)(2) for the exemption from registration for the transactions contemplated hereby or would require
registration of the Securities under the 1933 Act or (ii)cause the offer and sale of the Securities pursuant to this Agreement to be
integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions.


 


4.23.
Private Placement. The offer and sale of the Securities to the Investors as contemplated hereby is exempt from the registration
requirements of the 1933 Act.


 


4.24.
Questionable Payments. Neither the Company nor, to the Company’s Knowledge, any of the current or former directors, officers,
employees, agents or other Persons acting on behalf of the Company, has on behalf of the Company: (a) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) made any direct or indirect unlawful
payments to any governmental officials or employees from corporate funds; (c) established or maintained any unlawful or unrecorded fund
of corporate monies or other assets which is in violation of law; (d) made any false or fictitious entries on the books and records of
the Company; (e) made any unlawful rebate, payoff, influence payment, kickback, bribe or other unlawful payment of any nature; or (f)
violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended.


 


4.25.
Office of Foreign Assets Control and Export Control Laws. Neither the Company nor, to the Company’s Knowledge, any of the
current or former directors, officers, employees, agents or other Persons acting on behalf of the Company is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Treasury Department. The
Company has conducted all export transactions in accordance with applicable provisions of United States export control laws and regulations,
including the Export Administration Regulations, the International Traffic in Arms Regulations, the regulations administered by OFAC
of the U.S. Treasury Department, and the export control laws and regulations of any other applicable jurisdiction. Without limiting the
foregoing: (a) the Company has obtained all export licenses and other approvals, timely filed all required filings and has assigned the
appropriate export classifications to all products, in each case as required for its exports of products, software and technologies from
the United States and any other applicable jurisdiction; (b) the Company is in compliance with the terms of all applicable export licenses,
classifications, filing requirements or other approvals; (c) there are no pending or, to the knowledge of the Company, threatened claims
against the Company with respect to such exports, classifications, required filings or other approvals; (d) there are no pending investigations
related to the Company’s exports; and (e) there are no actions, conditions, or circumstances pertaining to the Company’s
export transactions that would reasonably be expected to give rise to any material future claims. The Company will not directly or indirectly
use the proceeds of the offering contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity for the purpose of financing the activities of any person that is the target of sanctions
administered or enforced by such authorities or in connection with any country or territory that is the target of country- or territory-wide
OFAC sanctions.


 




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4.26.
Transactions with Affiliates. Except as disclosed in the SEC Filings, none of the officers or directors of the Company and, to
the Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with the Company (other than
as holders of stock options and/or warrants, and 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, director or such employee or, to the Company’s Knowledge, any entity in
which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.


 


4.27.
Internal Controls. The Company is in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002
currently applicable to the Company. The Company maintain 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 GAAP 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 and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken
with respect to any differences. The Company has established and maintains disclosure controls and procedures (as defined in 1934 Act
Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that material information
relating to the Company is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s most recently filed periodic report under the 1934 Act, as the case may be, is being prepared. The Company has established
internal control over financial reporting (as defined in 1934 Act Rules 13a-15(f) and 15d-15(f)) to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The
Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures and the
Company’s internal control over financial reporting (collectively, “internal controls”) as of the end of the
period covered by the most recently filed periodic report under the 1934 Act (such date, the “Evaluation Date”). The
Company presented in its most recently filed periodic report under the 1934 Act the conclusions of the certifying officers about the
effectiveness of such internal controls based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been
no significant changes in the Company’s internal controls or, to the Company’s Knowledge, in other factors that could significantly
affect the Company’s internal controls. The Company maintains and will continue to maintain a standard system of accounting established
and administered in accordance with GAAP and the applicable requirements of the 1934 Act.


 


4.28.
Investment Company. The Company is not required to be registered as, and is not an Affiliate of, and immediately following the
Closing will not be required to register as, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.


 


4.29.
Preclinical Studies and Clinical Trials. The preclinical studies and clinical trials conducted by, on behalf of, or sponsored
by the Company that are described in, or the results of which are referred to in, the SEC Filings were and, if still pending, are being,
conducted in all material respects in accordance with the protocols submitted to the U.S. Food and Drug Administration (the “FDA”)
or any foreign governmental body exercising comparable authority (together with the FDA, the “Regulatory Authorities”),
any conditions of approval and policies imposed by any institutional review board, ethics review board or committee responsible for the
oversight of such preclinical studies and clinical trials, standard medical and scientific research standards and procedures for products
or product candidates comparable to those being developed by the Company and all applicable statutes and all applicable rules and regulations
enforced by the FDA or other Regulatory Authorities and applicable Good Clinical Practice and Good Laboratory Practice requirements;
the descriptions of the preclinical studies and clinical trials conducted by or, to the Company’s Knowledge, on behalf of the Company,
contained in the SEC Filings are accurate and not misleading in all material respects; the Company has no Knowledge of any other preclinical
studies and clinical trials, the results of which are inconsistent with or would call into question the results described in the SEC
Filings; and the Company has not received any written notices or correspondence from any Regulatory Authorities or any Institutional
Review Board requiring or threatening the termination, suspension, material modification or clinical hold of any preclinical studies
or clinical trials conducted by or on behalf of the Company and, to the Company’s Knowledge, there are no reasonable grounds for
the same.


 




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4.30.
Manipulation of Price. The Company has not, and, to the Company’s Knowledge, no Person acting on its behalf has taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities.


 


4.31.
Bad Actor Disqualification. None of the Company, any predecessor or affiliated issuer of the Company nor, to the Company’s
Knowledge, any director or executive officer of the Company or any promoter connected with the Company in any capacity, is subject to
any of the “bad actor” disqualifications within the meaning of Rule 506(d) under the 1933 Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company will notify the Investors and
the Placement Agent in writing, prior to the Closing Date of any Disqualification Event and (ii) any event that would, with the passage
of time, become a Disqualification Event.


 


4.32.
Shell Company Status. The Company is not, and has never been, an issuer identified in Rule 144(i)(1).


 


4.33.
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
all of which will be disclosed in a Form 8-K on or prior to the Closing Date, the Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Investors with any information that it believes constitutes or would reasonably be deemed
to constitute material, non-public information that will not otherwise be disclosed in the SEC Filings on or prior to the Closing Date.
The Company understands and confirms that the Investors will rely on the foregoing representation in effecting transactions in securities
of the Company.


 


4.34.
Insurance Coverage. The Company maintains in full force and effect insurance coverage that is customary for comparably situated
companies for the business being conducted and properties owned or leased by the Company, and the Company reasonably believes such insurance
coverage to be adequate against all liabilities, claims and risks against which it is customary for comparably situated companies to
insure.


 


4.35.
Anti-Bribery and Anti-Money Laundering Laws. Each of the Company and any its officers, directors, supervisors, managers, agents,
or employees are and have at all times been in compliance with and its participation in the offering will not violate: (A) anti-bribery
laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule,
or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010,
or any other law, rule or regulation of similar purposes and scope or (B) anti-money laundering laws, including, but not limited to,
applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering,
including, without limitation, Title 18 US. Code sections 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money
laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering,
of which the United States is a member and with which designation the United States representative to the group or organization continues
to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any
orders or licenses issued thereunder.


 




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4.36.
Bank Holding Company Act. Neither the Company nor any of its Affiliates is subject to the Bank Holding Company Act of 1956, as
amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Affiliates owns or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Affiliates exercises a controlling
influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


4.37.
No Additional Agreements. The Company has no other agreements or understandings (including, without limitation, side letters)
with any Investor to purchase Securities on terms more favorable to such Investor than as set forth herein.


 


5.
Representations and Warranties of the Investors.
Each of the Investors hereby, severally and not jointly, represents and warrants to the Company and the Placement Agent that:


 


5.1.
Organization and Existence. Such Investor is a validly existing corporation, limited partnership or limited liability company
and has all requisite corporate, partnership or limited liability company power and authority to enter into and consummate the transactions
contemplated by the Transaction Documents and to carry out its obligations hereunder and thereunder, and to invest in the Common Shares,
the Preferred Shares or the Warrants, as applicable, pursuant to this Agreement.


 


5.2.
Authorization. The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is
a party have been duly authorized and each has been duly executed and when delivered will constitute the valid and legally binding obligation
of such Investor, enforceable against such Investor in accordance with their respective terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 


5.3.
Purchase Entirely for Own Account. The Common Shares, the Preferred Shares, the Warrants and/or the Warrant Shares, as applicable,
to be received by such Investor hereunder will be acquired for such Investor’s own account, not as nominee or agent, and not with
a view to the resale or distribution of any part thereof in violation of the 1933 Act, and such Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to
such Investor’s right at all times to sell or otherwise dispose of all or any part of such Common Shares, Preferred Shares, Warrants
and/or Warrant Shares, as applicable, in compliance with applicable federal and state securities laws. Nothing contained herein shall
be deemed a representation or warranty by Investor to hold the Common Shares, the Preferred Shares, the Warrants and/or the Warrant Shares,
as applicable, for any period of time. Such Investor is not a broker-dealer registered with the SEC under the 1934 Act or an entity engaged
in a business that would require it to be so registered.


 




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5.4.
Investment Experience. Such Investor acknowledges that it can bear the economic risk and complete loss of its investment in the
Common Shares, the Preferred Shares, the Warrants and/or the Warrant Shares, as applicable, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.


 


5.5.
Disclosure of Information. Such Investor or its advisor has had an opportunity to receive, review and understand all information
related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business
and the terms and conditions of the offering of the Securities, and has conducted and completed its own independent due diligence. Such
Investor acknowledges receipt of copies of the SEC Filings that are available on the Edgar System. Based on the information such Investor
or its advisor has deemed appropriate, and without reliance on the Placement Agent, it or its advisor has independently made its own
analysis and decision to enter into the Transaction Documents. Such Investor or its advisor is relying exclusively on its own sources
of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the execution,
delivery and performance of the Transaction Documents, the Common Shares, the Preferred Shares, the Warrants and/or the Warrant Shares,
as applicable, and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company,
including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Neither such inquiries nor any other
due diligence investigation conducted by such Investor or its advisor shall modify, limit or otherwise affect such Investor’s right
to rely on the Company’s representations and warranties contained in this Agreement. Such Investor understands that the Placement
Agent has acted solely as the agent of the Company in this placement of the Securities and such Investor has not relied on the business
or legal advice of the Placement Agent or any of its agents, counsel or affiliates in making its investment decision hereunder, and confirms
that none of such persons has made any representations or warranties to such Investor in connection with the transactions contemplated
hereby.


 


5.6.
Restricted Securities. Such Investor understands that the Common Shares, the Preferred Shares, the Warrants and/or the Warrant
Shares, as applicable, are characterized as “restricted securities” under the U.S. federal securities laws inasmuch
as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances.


 


5.7.
Legends. It is understood that, except as provided below, certificates evidencing the Common Shares, the Preferred Shares, the
Warrants and/or the Warrant Shares may bear the following or any similar legend:


 


“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED
UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY
BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER
MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”


 


If
required by the authorities of any state in connection with the issuance or sale of the Common Shares, the Preferred Shares, the Warrants
and/or the Warrant Shares, certificates evidencing the same may bear the legend required by such state authority.


 






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5.8.
Accredited Investor. At the time such Investor was offered the Securities, it was and, as of the date hereof, such Investor is
an “accredited investor” within the meaning of Rule 501 under the 1933 Act and has executed and delivered to the Company
its Investor Questionnaire, which such Investor represents and warrants is true, correct and complete. Such investor is a sophisticated
institutional investor with sufficient knowledge, sophistication and experience in business, including transactions involving private
placements in public equity, to properly evaluate the risks and merits of its purchase of the Securities. Such Investor has determined
based on its own independent review and such professional advice as it deems appropriate that its purchase of the Securities and participation
in the transactions contemplated by the Transaction Documents (i) are fully consistent with its financial needs, objectives and condition,
and (ii) are a fit, proper and suitable investment for such Investor, notwithstanding the substantial risks inherent in investing in
or holding the Securities.


 


5.9.
No General Solicitation. Such Investor did not learn of the investment in the Securities as a result of any general solicitation
or general advertising.


 


5.10.
Brokers and Finders. Other than the Placement Agent, no Person will have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon the Company or an Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of such Investor.


 


5.11.
Short Sales and Confidentiality Prior to the Date Hereof. Other than consummating the transactions contemplated hereunder, such
Investor has not, nor has any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly
executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time
that such Investor was first contacted by the Company, the Placement Agent or any other Person regarding the transactions contemplated
hereby and ending immediately prior to the date hereof. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s
assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that
made the investment decision to purchase the Securities covered by this Agreement. The Investor, its Affiliates and authorized representatives
and advisors who are aware of the transactions contemplated hereby, maintained the confidentiality of all disclosures made to it in connection
with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of
the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.


 


5.12.
No Government Recommendation or Approval. Such Investor understands that no United States federal or state agency, or similar
agency of any other country, has reviewed, approved, passed upon, or made any recommendation or endorsement of the Company or the purchase
of the Securities.


 




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5.13.
No Intent to Effect a Change of Control; Ownership. Such Investor has no present intent to effect a “change of control”
of the Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the 1934 Act and under the rules of
Nasdaq. Except as set forth in its Selling Stockholder Questionnaire, as of the date hereof neither such Investor nor any of its Affiliates
is the owner of record or the beneficial owner of shares of Common Stock or securities convertible into or exchangeable for Common Stock.


 


5.14.
No Conflicts. The execution, delivery and performance by such Investor of the Transaction Documents and the consummation by such
Investor of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such
Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which such Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Investor, except in the case of clauses (ii) and (iii) above, for such conflicts,
defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect
on the ability of such Investor to perform its obligations hereunder.


 


5.15.
Residency. Such Investor is a resident of or an entity domiciled under the jurisdiction specified below its address on the Schedule
of Investors.


 


The
Company acknowledges and agrees that the representations contained in this Section 5 shall not modify, amend or affect such Investor’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby.


 


6.
Conditions to Closing; Termination.


 


6.1.
Conditions to the Investors’ Obligations. The obligation of each Investor to purchase Securities at the Closing is subject
to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which
may be waived by such Investor (as to itself only):


 


(a)
The representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects as of the
date hereof and on the Closing Date (other than any representations and warranties that are already qualified by materiality or Material
Adverse Effect), except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct as of such earlier date. The Company shall have performed in all material respects
all obligations and covenants herein required to be performed by it on or prior to the Closing Date.


 


(b)
The Company shall have obtained any and all consents, permits, approvals, registrations and waivers, other than the Authorized Share
Approval, necessary for consummation of the purchase and sale of the Securities and the consummation of the other transactions contemplated
by the Transaction Documents, including the waiver of any applicable registration rights that could affect the rights of the Investors
under the Registration Rights Agreement, all of which shall be in full force and effect.


 


(c)
The Company shall have executed and delivered the Registration Rights Agreement.


 




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(d)
The Company shall submit a Listing of Additional Shares notification form to Nasdaq for the listing of the Common Shares, the Common
Warrant Shares (assuming the Warrants are exercisable for Common Stock and are exercisable in full without regard to any exercise limitations
therein and assuming the receipt of the Authorized Share Approval and authorization of such Common Stock to be issued in full) and the
Conversion Shares (assuming the shares of Preferred Stock are convertible in full without regard to any conversion limitations in the
Certificate of Designations and assuming the receipt of the Authorized Share Approval and authorization of such Common Stock to be issued
in full), to the extent the Company then has authority under its certificate of incorporation to issue such shares of Common Stock, a
copy of which notification form shall have been made available to the Investors upon request, and is not aware of any circumstance that
would cause such shares of Common Stock to be not approved for listing. If less than all of the foregoing shares are included in such
notification form, the Company will submit a Listing of Additional Shares notification form to Nasdaq for the listing of the remaining
shares promptly after the Authorized Share Approval, a copy of which notification form shall be made available to the Investors upon
request.


 


(e)
No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted
by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction
Documents.


 


(f)
The Investors and the Placement Agent shall have received a legal opinion of Fredrikson & Byron, P.A., in a form reasonably acceptable
to the Investors, dated as of the Closing Date, executed by such counsel and delivered to the Investors;


 


(g)
There shall have been no Material Adverse Effect with respect to the Company since the date hereof.


 


(h)
No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect
to public trading in the Common Stock.


 


6.2.
Conditions to Obligations of the Company. The Company’s obligation to sell and issue Securities at the Closing as to any
Investor is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions,
any of which may be waived by the Company:


 


(a)
The representations and warranties made by such Investor in Section 5 hereof shall be true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made
on and as of said date. Such Investor shall have performed in all material respects all obligations and covenants herein required to
be performed by it on or prior to the Closing Date.


 


(b)
Such Investor shall have executed and delivered the Registration Rights Agreement, an Investor Questionnaire and a Selling Stockholder
Questionnaire.


 


(c)
Such Investor shall have paid in full its Subscription Amount to the Company.


 


6.3.
Termination of Obligations to Effect Closing; Effects.


 


(a)
The obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows:


 




    	 	19	 



     


    

 


(i)
Upon the mutual written consent of the Company and Investors that agreed to purchase a majority of the Securities to be issued and sold
pursuant to this Agreement;


 


(ii)
By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been
waived by the Company; or


 


(iii)
By an Investor (with respect to itself only) if, without waiver by such Investor, either: (A) any of the conditions set forth in Section
6.1 shall have become incapable of fulfillment, or (B) the Funding Trigger Date has not occurred on or prior to December 31, 2022;


 


provided,
however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall
not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction
Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect
the Closing.


 


(b)
In the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 6.3, written
notice thereof shall be given to the other Investors by the Company and the other Investors shall have the right to terminate their obligations
to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6.3 shall be deemed to release
any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents
or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the
other Transaction Documents.


 


6.4.
Accelerated Closing. Notwithstanding Section 3.1, each Investor may irrevocably elect, prior to the Funding Trigger Date, to purchase,
in whole and not in part, the Securities set forth opposite such Investor’s name on Exhibit A hereto by delivering written
notice to the Company of such election. Upon receipt of such written notice, the Company and such Investor will use commercially reasonable
efforts to promptly complete the Closing of the purchase of such Securities.


 


7.
Exculpation of Placement Agent. Each party hereto
agrees for the express benefit of the Placement Agent, its affiliates and its representatives that:


 


(a)
Neither the Placement Agent nor any of its affiliates or any of its representatives (i) has any duties or obligations other than those
specifically set forth herein or in the Engagement Letter between the Company and the Placement Agent (the “Engagement Letter”);
(ii) shall be liable for any improper payment made in accordance with the information provided by the Company; (iii) makes any representation
or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation
delivered by or on behalf of the Company pursuant to this Agreement or the Transaction Documents or in connection with any of the transactions
contemplated by this Agreement, including any offering or marketing materials; or (iv) shall be liable (x) for any action taken, suffered
or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement or any Transaction Document or (y) for anything which any of them may do or refrain from doing in connection
with this Agreement or any Transaction Document, except for such party’s own gross negligence, willful misconduct or bad faith.


 


(b)
The Placement Agent, its affiliates and their respective representatives shall be entitled to (i) rely on, and shall be protected in
acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any of them by or on
behalf of the Company, and (ii) be indemnified by the Company for acting as Placement Agent hereunder pursuant the indemnification provisions
set forth in the Engagement Letter.


 




    	 	20	 



     


    

 


8.
Covenants and Agreements of the Company.


 


8.1.
Information. From the date hereof until the Closing, the Company will make reasonably available to the Investors’ representatives,
consultants and their respective counsels for inspection, such information and documents as the Investor reasonably requests, and will
make available at reasonable times and to a reasonable extent officers and employees of the Company to discuss the business and affairs
of the Company; provided, however, that in no event shall the Company be required to disclose material nonpublic information
to the Investors, or to advisors to or representatives of the Investors.


 


8.2.
Nasdaq Listing. The Company will use commercially reasonable efforts to continue the listing and trading of its Common Stock on
Nasdaq and, in accordance therewith, will use commercially reasonable efforts to comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of such market or exchange, as applicable.


 


8.3.
Termination of Covenants. The provisions of Sections 8.1 and 8.2 shall terminate and be of no further force and effect on the
date on which the Company’s obligations under the Registration Rights Agreement to register or maintain the effectiveness of any
registration covering the Registrable Securities (as such term is defined in the Registration Rights Agreement) shall terminate.


 


8.4.
Authorized Share Approval. The Company will use commercially reasonable efforts to obtain and effect the Authorized Share Approval
no later than December 31, 2022. Notwithstanding the foregoing, on or prior to the date that is thirty (30) days following the last Closing
Date with respect to the purchase and sale of all Securities set forth on Exhibit A hereto, the Company shall call, and deliver
notice of, a special meeting of stockholders in accordance with the Company’s bylaws for the purpose of obtaining the Authorized
Share Approval, and shall thereafter use commercially reasonable efforts to promptly obtain and effect the Authorized Share Approval.


 


8.5.
Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D. The Company shall take such commercially reasonable actions as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States.


 


8.6.
Removal of Legends. In connection with any sale, assignment, transfer or other disposition of the Common Shares, the Common Warrant
Shares or the Conversion Shares, as applicable, by an Investor pursuant to Rule 144, pursuant to any other exemption under the 1933 Act
or pursuant to sale under an effective registration statement such that the purchaser acquires freely tradable shares and upon compliance
by the Investor with the requirements of this Section 8.6, if requested by the Investor, the Company shall cause the transfer agent for
the Common Stock (the “Transfer Agent”) to timely remove any restrictive legends related to the book entry account
holding such Common Shares, Common Warrant Shares or Conversion Shares, as applicable, and make a new, unlegended entry for such book
entry Common Shares, Common Warrant Shares or Conversion Shares, as applicable, sold or disposed of without restrictive legends within
two (2) Trading Days of any such request therefor from the Investor, provided that the Company has received customary representations
and other documentation reasonably acceptable to the Company in connection therewith. Subject to receipt by the Company of customary
representations and other documentation reasonably acceptable to the Company in connection therewith, upon the earlier of such time as
the Common Shares, Common Warrant Shares or Conversion Shares, as applicable, (i) have been sold or transferred pursuant to an effective
registration statement, (ii) have been sold pursuant to Rule 144, or (iii) are eligible for resale under Rule 144(b)(1) or any successor
provision (without the requirement for the Company to comply with the current public information obligations of Rule 144(c)), the Company
shall within two (2) Trading Days of any request therefor from an Investor accompanied by such customary and reasonably acceptable documentation
referred to above (A) deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry
for such book entry Common Shares, Common Warrant Shares or Conversion Shares, as applicable, and (B) use reasonably best efforts to
cause its counsel to deliver to the Transfer Agent one or more blanket opinions to the effect that the removal of such legends in such
circumstances may be effected under the 1933 Act. From and after the earlier of such dates, upon an Investor’s written request,
the Company shall promptly cause certificates or book entries evidencing the Investor’s Common Shares, Common Warrant Shares or
Conversion Shares, as applicable, to be replaced with certificates or book entries, as the case may be, which do not bear such restrictive
legends, provided the provisions of either clauses (i), (ii) or (iii) above, as applicable, are satisfied with respect to such Common
Shares, Common Warrant Shares or Conversion Shares, as applicable. The Company shall be responsible for the fees of its Transfer Agent
associated with such issuance.


 




    	 	21	 



     


    

 


8.7.
Pledge of Securities. The Company acknowledges and agrees that its Common Shares, Preferred Shares or Warrant Shares, as applicable,
may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is secured
by the Common Shares, Preferred Shares or the Warrant Shares, as applicable. The pledge of Common Shares, Preferred Shares or Warrant
Shares, as applicable, shall not be deemed to be a transfer, sale or assignment of the Common Shares or Preferred Shares hereunder, and
no Investor effecting a pledge of Common Shares, Preferred Shares or Warrant Shares, as applicable, shall be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document;
provided that an Investor and its pledgee shall be required to comply with the provisions of the Transaction Documents, including Section
8.6 hereof, in order to effect a sale, transfer or assignment of Common Shares, Preferred Shares or Warrant Shares, as applicable, to
such pledgee.


 


8.8.
Short Sales and Confidentiality After the Date Hereof. Each Investor covenants that neither it nor any Affiliates acting on its
behalf or pursuant to any understanding with it will execute any Short Sales during the period from the date hereof until the earlier
of such time as (i) after the transactions contemplated by this Agreement are first publicly announced or (ii) this Agreement is terminated
in full. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Investor’s assets, the covenant set forth above shall
only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Common
Shares and Preferred Shares. Each Investor covenants that until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company, such Investor will maintain the confidentiality of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction). Each Investor understands and acknowledges that the SEC currently takes the
position that coverage of short sales of shares of the Common Stock “against the box” prior to effectiveness of a resale
registration statement with securities included in such registration statement would be a violation of Section 5 of the 1933 Act, as
set forth in Item 239.10 of the 1933 Act Rules Compliance and Disclosure Interpretations compiled by the Office of Chief Counsel, Division
of Corporation Finance.


 


8.9.
Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares
of Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares
of Common Stock), combination or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each
reference in any Transaction Document to a number of shares or a price per share shall be deemed to be amended to appropriately account
for such event.


 




    	 	22	 



     


    

 


8.10.
Exercise Procedures. The form of Notice of Exercise included in the Warrants and the payment of the exercise price contemplated
therein set forth the totality of the procedures required of the Investors in order to exercise the Warrants. No additional legal opinion,
other information or instructions shall be required of the Investors to exercise their Warrants. Without limiting the preceding sentences,
no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise form be required in order to exercise the Warrants. The Company shall honor exercises of the Warrants and shall
deliver Warrant Shares in accordance with the applicable terms, conditions and time periods set forth in the Transaction Documents.


 


8.11.
Fees. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s
commissions (other than for Persons engaged by any Investor) relating to or arising out of the transactions contemplated hereby, including,
without limitation, any fees or commissions payable to the Placement Agent.


 


9.
Survival and Indemnification.


 


9.1.
Survival. The representations, warranties, covenants, and agreements contained in this Agreement shall survive the Closing for
a period of three hundred sixty five (365) days after the date hereof and thereafter shall have no further force and effect; provided
that the terms of Section 8.6 shall survive beyond such period until such time as no Investor holds any Registrable Securities (as defined
in the Registration Rights Agreement).


 


9.2.
Indemnification by the Company. The Company agrees to indemnify and hold harmless each of the Investors, the officers, directors,
partners, members, managers, trustees, employees and agents and other representatives, successors and assigns of each Investor, each
Person who controls any such Investor (within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act) and the officers,
directors, partners, members, managers, trustees and employees of each such controlling Person (each, an “Indemnified Party”),
against any losses, claims, damages, liabilities or expenses, joint or several, to which such Indemnified Party may become subject under
the 1933 Act, the 1934 Act, or any other federal or state statutory law or regulation (including in settlement of any litigation, if
such settlement is effected with the written consent of the Company, provided that such consent shall not be unreasonably withheld, conditioned,
or delayed), insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise
out of or are based in whole or in part on the inaccuracy in the representations and warranties of the Company contained in this Agreement
or the failure of the Company to perform its obligations hereunder, and will reimburse each Indemnified Party for legal and other expenses
reasonably incurred as such expenses are reasonably incurred by such Indemnified Party in connection with investigating, defending, settling,
compromising or paying such loss, claim, damage, liability, expense or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (i)
the failure of such Indemnified Party (or its related parties) to comply with the covenants and agreements contained herein, or (ii)
the inaccuracy of any representations made by such Indemnified Party (or its related parties) herein.


 




    	 	23	 



     


    

  


9.3.
Indemnification Procedure. Promptly after any Indemnified Party has received notice of any indemnifiable claim hereunder, or the
commencement of any action, suit or proceeding by a third Person, which the Indemnified Party believes in good faith is an indemnifiable
claim under this Agreement, the Indemnified Party shall give the Company written notice of such claim or the commencement of such action,
suit or proceeding, but failure to so notify the Company will not relieve the Company from any liability it may have to such Indemnified
Party hereunder except to the extent that the Company is materially prejudiced by such failure. Such notice shall state the nature and
the basis of such claim to the extent then known. The Company shall have the right to defend and settle, at its own expense and by its
own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Company pursues the same diligently
and in good faith. If the Company undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to
do so, and the Indemnified Party shall cooperate with the Company and its counsel in all commercially reasonable respects in the defense
thereof and the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Company with any books,
records and other information reasonably requested by the Company and in the Indemnified Party’s possession or control. Such cooperation
of the Indemnified Party shall be at the cost of the Company. After the Company has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long as the Company diligently pursues such defense, the Company
shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability; provided, however, that the Indemnified Party shall be entitled (a) at its expense, to participate
in the defense of such asserted liability and the negotiations of the settlement thereof and (b) if (i) the Company has failed to assume
the defense or employ counsel reasonably acceptable to the Indemnified Party or (ii) if the defendants in any such action include both
the Indemnified Party and the Company and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses
available to the Indemnified Party that are different from or in addition to those available to the Company or if the interests of the
Indemnified Party reasonably may be deemed to conflict with the interests of the Company, then the Indemnified Party shall have the right
to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses
and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Company as incurred. Notwithstanding
any other provision of this Agreement, the Company shall not settle any indemnified claim without the written consent of the Indemnified
Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does
not include any admission of wrongdoing or malfeasance by, the Indemnified Party.


 


10.
Miscellaneous.


 


10.1.
Successors and Assigns. This Agreement may not be assigned by an Investor party hereto without the prior written consent of the
Company or by the Company without the prior written consent of all of the Investors, as applicable; provided, however,
that an Investor may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate without the prior written
consent of the Company, provided such assignee agrees in writing to be bound by the provisions hereof that apply to Investors. The provisions
of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Without
limiting the generality of the foregoing, in the event that the Company is a party to a merger, consolidation, share exchange or similar
business combination transaction in which the Common Stock is converted into the equity securities of another Person, from and after
the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of
the Company hereunder, the term “Company” shall be deemed to refer to such Person and the term “Common Shares,”
“Preferred Shares,” “Conversion Shares,” “Warrants” and/or “Warrant
Shares” shall be deemed to refer to the securities received by the Investors in exchange therefor in connection with such transaction.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.


 




    	 	24	 



     


    

 


10.2.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any
electronic signature complying with the U.S. ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


10.3.
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


10.4.
Notices. All notices and other communications under this Agreement must be in writing and are deemed duly delivered when (a) delivered
if delivered personally or by nationally recognized overnight courier service (costs prepaid), (b) sent, if sent by electronic mail during
normal business hours of the recipient, and if not sent during normal business hours, then on the first Business Day following such transmission
or (c) received or rejected by the addressee, if sent by United States of America certified or registered mail, return receipt requested;
in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the individual (by name
or title) designated below (or to such other address, facsimile number, e-mail address or individual as a party may designate by notice
to the other parties):


 


If
to the Company:


 


Celcuity
Inc.


16305
36th Avenue North, Suite 100


Minneapolis,
MN 55446


Attention:
Brian F. Sullivan and Vicky Hahne


E-mail:
bsullivan@celcuity.com; vhahne@celcuity.com


 


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


 


Fredrikson
& Byron, P.A.


200
South Sixth Street, Suite 4000


Minneapolis,
MN 55402


Facsimile:
(612) 492-7077


Attention:
Eric O. Madson


E-mail:
emadson@fredlaw.com


 


If
to the Investors:


 


to
the addresses set forth on the signature pages hereto.


 


10.5.
Expenses. Other than as set forth in Section 8.11, the parties hereto shall pay their own costs and expenses in connection herewith,
regardless of whether the transactions contemplated hereby are consummated; it being understood that each of the Company and each Investor
has relied on the advice of its own respective counsel.


 




    	 	25	 



     


    

 


10.6.
Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company
and (a) prior to the Closing, Investors that agreed to purchase a majority in interest of the Securities to be issued and sold pursuant
to this Agreement, based on the initial Subscription Amounts, and (b) following the Closing, the Required Investors. Notwithstanding
the foregoing, this Agreement may not be amended and the observance of any term of this Agreement may not be waived with respect to any
Investor without the written consent of such Investor unless such amendment or waiver applies to all Investors in the same fashion. Any
amendment or waiver effected in accordance with this paragraph shall be binding upon (i) prior to Closing, each Investor and (ii) following
the Closing, each holder of any Common Shares, Preferred Shares, Conversion Shares, Warrants or Warrant Shares purchased under this Agreement
at the time outstanding, and in each case, each future holder of all such Common Shares, Preferred Shares, Conversion Shares, Warrants
or Warrant Shares and the Company. For the avoidance of doubt, any provision herein requiring the calculation of the number of Securities
as of any date, or the computation of a percentage of Securities, shall be deemed to refer to (x) the number of Common Shares, Preferred
Shares, Conversion Shares and Warrant Shares constituting Securities as of such date, including Warrant Shares issued or issuable upon
exercise of Warrants constituting Securities, without regard to any limitation on the exercise of the Warrants, and (y) in the case of
Preferred Shares and Preferred Warrant Shares, to the number of Conversion Shares into which the Preferred Warrant Shares may be converted.


 


10.7.
Publicity. Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall
be issued by the Company or any of the Investors without the prior written consent of the Company (in the case of a release or announcement
by the Investors) or the Required Investors (in the case of a release or announcement by the Company) (which consents shall not be unreasonably
withheld or delayed), except as such release or announcement may be required by law or the applicable rules or regulations of any securities
exchange or securities market. Notwithstanding the foregoing, each Investor may identify the Company and the value of such Investor’s
security holdings in the Company in accordance with applicable investment reporting and disclosure regulations or internal policies without
prior notice to or consent from the Company (including, for the avoidance of doubt, filings pursuant to Sections 13 and 16 of the 1934
Act). By 9:00 A.M. (New York City time) on the Trading Day immediately following the date of this Agreement, the Company shall issue
a press release disclosing all material terms of transactions contemplated by this Agreement (the “Press Release”).
No later than 5:30 p.m. (New York City time) on the fourth Business Day following the date of this Agreement, the Company will file a
Current Report on Form 8-K attaching the press release described in the foregoing sentence as well as copies of the Transaction Documents.


 


10.8.
Third-Party Beneficiaries. Each of the Company and each Investor acknowledges and agrees that the Placement Agent is a third-party
beneficiary of the representations and warranties contained in Sections 4 and 5, respectively. The parties further agree that the Placement
Agent may rely on or, if the Placement Agent so requests, be specifically named as an addressee of, the legal opinions to be delivered
pursuant to this Agreement.


 


10.9.
Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable
in any respect.


 


10.10.
Entire Agreement. This Agreement, including the signature pages and Exhibits, and the other Transaction Documents constitute the
entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings
and representations, both oral and written, between the parties with respect to the subject matter hereof and thereof.


 




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10.11.
Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions
as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.


 


10.12.
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement (including all matters concerning the construction,
validity, enforcement and interpretation hereof) shall be governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the choice of law principles thereof (other than Sections 5-1401 and 5-1402 of the General Obligations
Law). 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 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. To the extent that the Company has or hereafter may
acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect
to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such
suit, action or proceeding. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO
THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.


 


10.13.
Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under any Transaction Document
are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance
of the obligations of any other Investor under any Transaction Document. The decision of each Investor to purchase Securities pursuant
to the Transaction Documents has been made by such Investor independently of any other Investor. Nothing contained herein or in any Transaction
Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Investor acknowledges that no other
Investor has acted as agent for such Investor in connection with making its investment hereunder and that no Investor will be acting
as agent of such Investor in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction
Documents. Each Investor shall be entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Investor to be joined
as an additional party in any proceeding for such purpose.


 


10.14.
Interpretation. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and
the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument
shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. All article,
section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement,
and all exhibit, annex, letter and schedule references not attributed to a particular document shall be references to such exhibits,
annexes, letters and schedules to this Agreement. In addition, the word “or” is not exclusive; the words “including,”
“includes,” “included” and “include” are deemed to be followed by the words “without limitation”;
and the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or subdivision.


 


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    	 	27	 



     


    

 


IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the
date first above written.


 


	COMPANY:	CELCUITY
    INC.
	 	 
	 	By:	 
	 	Name:	Brian
    F. Sullivan
	 	Title:	Chief
    Executive Officer


 


[Remainder
of page intentionally left blank.


Signature
pages for Investors follow]


 


[Signature Page to Securities Purchase Agreement]


 




    	 



     


    

 


IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the
date first above written.


 


	INVESTOR:	 
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	Investor
    Information	 	 
	 	 	 
	Entity
    Name:	 
	 	 	 
	Address
    for Notices:	 
	 	 	 
	Contact
    Person:	 
	 	 	 
	Telephone:	 
	 	 	 
	Email:	 
	 	 	 
	Correspondence
    Address Only	 	 
	(if
    different from address for notices):	 
	 	 	 
	Tax
    ID #:	 
	 	 	 
	Name
    in which Securities should be issued:	 


 


[Signature
Page to Securities Purchase Agreement]


 




    	 



     


    

 


EXHIBIT
A


 


Schedule
of Investors


 


	Exhibit	 	Number
of Common Shares to
 be Purchased
	 	 	Aggregate Purchase Price of Common Shares	 	 	Number of Preferred Shares to be Purchased	 	 	Aggregate Purchase Price of Preferred Shares	 	 	Aggregate Purchase Price	 	 	Number of Preferred Warrant Shares Underlying Warrants	 
	VENROCK
                                            HEALTHCARE CAPITAL PARTNERS II, L.P.

                                                                                 

                                                                                7 Bryant Park,
                                            23rd Floor, New York, NY 10018
	 	 	338,757.00	 	 	$	1,947,852.75	 	 	 	36,081.00	 	 	$	2,074,657.50	 	 	$	4,022,510.25	 	 	 	27,982.00	 
	VHCP CO-INVESTMENT
                                            HOLDINGS II, LLC

                                                                            

                                                                           7 Bryant Park,
                                            23rd Floor, New York, NY 10018
	 	 	137,271.00	 	 	$	789,308.25	 	 	 	14,621.00	 	 	$	840,707.50	 	 	$	1,630,015.75	 	 	 	11,338.00	 
	VENROCK HEALTHCARE
                                            CAPITAL PARTNERS III, L.P.

                                                                            

                                                                           7 Bryant Park,
                                            23rd Floor, New York, NY 10018
	 	 	732,253.00	 	 	$	4,210,454.75	 	 	 	77,992.00	 	 	$	4,484,540.00	 	 	$	8,694,994.75	 	 	 	60,486.00	 
	VHCP CO-INVESTMENT
                                            HOLDINGS III, LLC

                                                                            

                                                                           7 Bryant Park,
                                            23rd Floor, New York, NY 10018
	 	 	73,267.00	 	 	$	421,285.25	 	 	 	7,804.00	 	 	$	448,730.00	 	 	$	870,015.25	 	 	 	6,051.00	 
	VENROCK
HEALTHCARE CAPITAL PARTNERS EG, L.P.
  
 7
Bryant Park, 23rd Floor, New York, NY 10018
	 	 	823,838.00	 	 	$	4,737,068.50	 	 	 	87,746.00	 	 	$	5,045,395.00	 	 	$	9,782,463.50	 	 	 	68,051.00	 
	Soleus
                                            Private Equity Fund II, L.P.
  
 104
Field Point Road, 2nd Floor, Greenwich, CT 06830
	 	 	343,832.00	 	 	$	1,977,034.00	 	 	 	174,313.00	 	 	$	10,022,997.50	 	 	$	12,000,031.50	 	 	 	83,478.00	 



 






    	 	A-1	 



     


    

 


	Exhibit	 	Number
of Common Shares to
 be Purchased
	 	 	Aggregate Purchase Price of Common Shares	 	 	Number of Preferred Shares to be Purchased	 	 	Aggregate Purchase Price of Preferred Shares	 	 	Aggregate Purchase Price	 	 	Number of Preferred Warrant Shares Underlying Warrants	 
	Soleus
Capital Master Fund, L.P.
  
 104
Field Point Road, 2nd Floor, Greenwich, CT 06830
	 	 	372,484.00	 	 	$	2,141,783.00	 	 	 	188,838.00	 	 	$	10,858,185.00	 	 	$	12,999,968.00	 	 	 	90,434.00	 
	Growth Equity Opportunities 18 VGE, LLC

                                                         

                                                        1954 Greenspring Drive, Suite 600,
Timonium, MD 21093
	 	 	1,250,001.00	 	 	$	7,187,505.75	 	 	 	222,826.00	 	 	$	12,812,495.00	 	 	$	20,000,000.75	 	 	 	139,130.00	 
	RA CAPITAL HEALTHCARE FUND, L.P.

                                                         

                                                        200 Berkeley Street, 18th Floor, Boston, MA 02116 
	 	 	1,400,001.00	 	 	$	8,050,005.75	 	 	 	181,739.00	 	 	$	10,449,992.50	 	 	$	18,499,998.25	 	 	 	128,696.00	 
	Commodore Capital Master LP

                                                         

                                                        767 Fifth Avenue, FL 12, New York, NY 10153 
	 	 	450,001.00	 	 	$	2,587,505.75	 	 	 	128,913.00	 	 	$	7,412,497.50	 	 	$	10,000,003.25	 	 	 	69,565.00	 
	Brian F. Sullivan

                                                         

                                                        2400 Bantle Farm Road, Medina, MN 55340 
	 	 	260,869.00	 	 	$	1,499,996.75	 	 	 	-	 	 	 	-	 	 	$	1,499,996.75	 	 	 	10,434.00	 



 




    	 	A-2	 



     


    

 


EXHIBIT
B


 


Form
of Warrant


 




    	 



     


    

 


EXHIBIT
C


 


Form
of Registration Rights Agreement


 




    	 



     


    

 


EXHIBIT
D


 


Form
of Certificate of Designations


 




    	 



     


    

 


APPENDIX
I


 


Form
of Investor Questionnaire


 




    	 



     


    

 


APPENDIX
II


 


Form
of Selling Stockholder Questionnaire