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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
_____________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported):
November 1, 2024
_____________________
COEPTIS THERAPEUTICS HOLDINGS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
001-39669 |
98-1465952 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(I.R.S. Employer
Identification No.) |
|
|
|
105 Bradford Rd, Suite 420
Wexford, Pennsylvania |
|
15090 |
(Address of principal executive offices) |
|
(Zip Code) |
724-934-6467
(Registrant’s telephone number, including area code)
____________________________________________________________
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of
each class |
|
Trading
Symbol(s) |
|
Name
of each exchange
on which registered |
Common Stock, par value $0.0001 per share |
|
COEP
|
|
Nasdaq
Capital Market |
Warrants,
each whole warrant exercisable for one-half of one share of Common Stock for $11.50 per whole share |
|
COEPW |
|
Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
Item 1.01 |
Entry into a Material Definitive Agreement. |
On November 1, 2024, the Company entered into a Standby Equity Purchase
Agreement (“SEPA”) with YA II PN, LTD, a Cayman Islands exempt limited partnership (“Yorkville”) pursuant to which
the Company has the right to sell to Yorkville up to $20.0 million of Common Stock, subject to certain limitations and conditions set
forth in the SEPA, from time to time during the term of the SEPA. The Company also entered into a Registration Rights Agreement with Yorkville
pursuant to which it will register the resale of shares of Common Stock issued to Yorkville pursuant to the SEPA. Sales of the shares
of Common Stock to Yorkville under the SEPA, and the timing of any such sales, are at the Company’s option, and the Company is under
no obligation to sell any shares of Common Stock to Yorkville under the SEPA, except in connection with notices that may be submitted
by Yorkville in certain circumstances as described below.
Each advance (each, an “Advance”) the Company requests
in writing to Yorkville under the SEPA (notice of such request, an “Advance Notice”) may be for a number of shares of Common
Stock up to such amount as is equal to 100% of the average daily volume traded of the Common Stock during the five trading days immediately
prior to the date the Company requests each Advance. The shares of Common Stock purchased pursuant to an Advance delivered by the Company
will be purchased at a price equal to 95% of the lowest daily VWAP of the shares of Common Stock during the three consecutive trading
days commencing on the date of the delivery of the Advance Notice, other than the daily VWAP on a day in which the daily VWAP is less
than a minimum acceptable price as stated by the Company in the Advance Notice or there is no VWAP on the subject trading day. The Company
may establish a minimum acceptable price in each Advance Notice below which the Company will not be obligated to make any sales to Yorkville.
“VWAP” is defined as the daily volume weighted average price of the shares of Common Stock for such trading day on the Nasdaq
Stock Market (“Nasdaq”) during regular trading hours as reported by Bloomberg L.P.
The SEPA will automatically terminate on the earliest to occur of (i)
December 1, 2027, provided that the Yorkville Note (described below) has been fully repaid or (ii) the date on which the Company shall
have made full payment of Advances pursuant to the SEPA. The Company has the right to terminate the SEPA at no cost or penalty upon five
trading days’ prior written notice to Yorkville, provided that there are no outstanding Advance Notices for which shares of common
stock need to be issued and the Company has paid all amounts owed to Yorkville pursuant to the Yorkville Note (described below). The Company
and Yorkville may also agree to terminate the SEPA by mutual written consent.
Any purchase under an Advance would be subject to certain limitations,
including that Yorkville shall not purchase or acquire any shares that would result in it and its affiliates beneficially owning more
than 4.99% of the then outstanding voting power or number of shares of Common Stock or any shares that, aggregated with shares issued
under all other earlier Advances, would exceed 19.99% of all shares of Common Stock outstanding on the date of the SEPA (the “Exchange
Cap”), unless the Company obtains stockholder approval to issue shares of Common Stock in excess of the Exchange Cap in accordance
with applicable Nasdaq rules.
In connection with the execution of the SEPA, the Company paid a diligence
fee (in cash) to Yorkville in the amount of $25,000. Additionally, the Company agreed to pay a commitment fee of $200,000 to Yorkville,
payable as follows: (i) $80,000 payable when the SEPA was entered into, in the form of the issuance of 400,000 shares of Common Stock,
representing $80,000 divided by the closing price as of the trading day immediately prior to the date of the SEPA, and (ii) $120,000 payable
in cash or by way of an Advance on the on the date upon which the Company has first received Advances in the aggregate amount of $5,000,000.
Additionally, Yorkville agreed to advance to the Company, in exchange
for a convertible promissory note (the “Yorkville Note”), an aggregate principal amount of $1,304,758. Interest shall accrue
on the outstanding balance of the Yorkville Note at an annual rate equal to 8%, subject to an increase to 18% upon an event of default
as described in the Yorkville Note. The maturity date of the Yorkville Note is November 1, 2025. Yorkville may convert the Yorkville Note
into shares of Common Stock at any time at a conversion price equal to the lower of (i) $1.00 (the “Fixed Price”) or (ii)
a price per share equal to 95% of the lowest daily VWAP during the 5 consecutive trading days immediately prior to the conversion date
of the Yorkville Note (the “Variable Price”), but which Variable Price shall not be lower than a floor price of $0.04 (the
“Floor Price”).
At any time while the SEPA is in place that there is a balance outstanding
under the Yorkville Note, Yorkville may deliver to the Company a notice (an “Investor Notice”) to the Company to cause an
Advance Notice to be deemed delivered to Yorkville and the issuance and sale of shares of Common Stock to Yorkville pursuant to an Advance.
Yorkville may select the amount of the Advance in an amount not to exceed the balance owed under the Yorkville Note outstanding on the
date of delivery of such Investor Notice. The shares will be issued and sold to Yorkville pursuant to an Investor Notice at a per share
price equal to the Conversion Price that would be applicable to the amount of the Advance selected by Yorkville if such amount were to
be converted as of the date of delivery of the Investor Notice. Yorkville will pay the purchase price for such shares to be issued pursuant
to the Investor Notice by offsetting the amount of the purchase price to be paid by Yorkville against an amount outstanding under the
Yorkville Note.
Additionally, the Company, at its option, shall have the right, but
not the obligation, to redeem early a portion or all amounts outstanding under the Promissory Notes at a redemption amount equal to the
outstanding principal balance being repaid or redeemed, plus a 5% prepayment premium, plus all accrued and unpaid interest; provided that
(i) the Company provides Yorkville with no less than ten trading days’ prior written notice thereof and (ii) on the date such notice
is issued, the VWAP of the Common Stock is less than the Fixed Price.
An “Amortization Event” will occur under the terms of the
Promissory Note if (i) the daily VWAP is less than the Floor Price for five trading days during a period of seven consecutive trading
days, or (ii) the Company has issued in excess of 99% of the shares of Common Stock available under the Exchange Cap. Within seven trading
days of an Amortization Event, the Company will be obligated to make monthly cash payments in an amount equal to the sum of (i) $250,000
of principal of the Promissory Note (or the outstanding principal if less than such amount) (the “Amortization Principal Amount”),
plus (ii) a payment premium of 5% in respect of such Amortization Principal Amount, plus (iii) accrued and unpaid interest thereunder.
The obligation of the Company to make monthly prepayments shall cease (with respect to any payment that has not yet come due) if any time
after an Amortization Event (a) if the Amortization Event is due to the Floor Price, the daily VWAP is greater than the 110% of the Floor
Price for a period of seven consecutive trading days, and (b) if the Amortization Event is due to the Exchange Cap, the date the Company
has obtained stockholder approval to increase the number of Common Shares under the Exchange Cap and/ or the Exchange Cap no longer applies,
in either case unless a subsequent Amortization Event occurs.
The Company will control the timing and amount of any sales of shares
of Common Stock to Yorkville, except with respect to Investor Advances. Actual sales of shares of Common Stock to Yorkville as an Advance
under the SEPA will depend on a variety of factors to be determined by the Company from time to time, which may include, among other things,
market conditions, the trading price of the Company’s Common Stock and determinations by the Company as to the appropriate sources
of funding for our business and operations.
The SEPA contains customary representations, warranties, conditions
and indemnification obligations of the parties. The representations, warranties and covenants contained in such agreements were made only
for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject
to limitations agreed upon by the contracting parties.
The net proceeds under the SEPA to the Company will depend on the frequency
and prices at which the Company sells its shares of common stock to Yorkville. The Company expects that any proceeds received from such
sales to Yorkville will be used for working capital and general corporate purposes.
This Current Report on Form 8-K shall not constitute an offer to sell
or a solicitation of an offer to buy any shares of common stock, nor shall there be any sale of shares of common stock in any state or
jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or other jurisdiction.
The foregoing description of each of the SEPA, the Yorkville Note and
the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the SEPA, the Yorkville Note and the
Registration Rights Agreement, respectively, each of which is filed as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, to this
Current Report on Form 8-K and incorporated herein by reference.
Important Notice Regarding
Forward-Looking Statements
This Current Report on
Form 8-K contains certain “forward-looking statements” within the meaning of the Securities Act and the Exchange Act. Statements
that are not historical facts, including statements about the pending transactions and matters described above, and the parties’
perspectives and expectations, are forward-looking statements. Such statements include, but are not limited to, statements regarding the
SEPA and the transactions contemplated thereunder, including the anticipated benefits of the proposed transactions, expected use of proceeds,
anticipated future financial and operating performance and results, including estimates for growth, and the expected timing of the transactions.
The words “expect,” “believe,” “estimate,” “intend,” “plan” and similar expressions
indicate forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to various
risks and uncertainties, assumptions (including assumptions about general economic, market, industry and operational factors), known or
unknown, which could cause the actual results to vary materially from those indicated or anticipated.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
10.1 |
Standby Equity Purchase Agreement, dated November 1, 2024, between Coeptis Therapeutics Holdings, Inc. and YA II PN, Ltd. |
10.2 |
Form of Convertible Promissory Note issued to YA II PN, Ltd. |
10.3 |
Registration Rights Agreement, dated November 1, 2024, between Coeptis Therapeutics Holdings, Inc. and YA II PN, Ltd |
104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
Coeptis Therapeutics Holdings, Inc. |
|
|
|
Date: November 6, 2024 |
By: |
/s/ David Mehalick |
|
|
David Mehalick
Chief Executive Officer |
Exhibit 10.1
STANDBY EQUITY PURCHASE AGREEMENT
THIS STANDBY EQUITY PURCHASE
AGREEMENT (this “Agreement”) dated as of November 1, 2024 is made by and between YA II PN, LTD., a Cayman
Islands exempt limited partnership (the “Investor”), and COEPTIS THERAPEUTICS HOLDINGS, INC., a Delaware corporation
(the “Company”). The Investor and the Company may be referred to herein individually as a “Party”
and collectively as the “Parties.”
WHEREAS, the Parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the
Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $20 million in aggregate gross
purchase price of newly issued fully paid shares of the Company’s Common Stock, par value $0.0001 per share (the “Common
Shares”);
WHEREAS, the Common
Shares are listed for trading on the Nasdaq Stock Market under the symbol “COEP;”
WHEREAS, the offer
and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other exemption from the
registration requirements of the Securities Act as may be available with respect to any or all of the transactions to be made hereunder;
WHEREAS, on January
3, 2024, the Company issued to the Investor a promissory note in the original principal amount of $1,500,000 (as amended from time to
time, the “January Promissory Note”); and
WHEREAS, the Parties
are concurrently entering into a Registration Rights Agreement in the form attached as Exhibit A hereto (the “Registration
Rights Agreement”), pursuant to which the Company shall register the resale of the Registrable Securities (as defined in the
Registration Rights Agreement), upon the terms and subject to the conditions set forth therein.
NOW, THEREFORE,
the Parties hereto agree as follows:
Article I. Certain Definitions
Capitalized terms used in this
Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof, or as otherwise set
forth in this Agreement.
Article II. Pre-Paid Advances
Section 2.01
Pre-Paid Advance. On the date hereof, the Investor shall advance to the Company the principal amount of $1,304,758.00] (the
“Pre-Paid Advance”), which shall be evidenced by convertible promissory notes in the form attached hereto as Exhibit
B (the “Promissory Note”). The Pre-Paid Advance shall be advanced on the Effective Date (the “Pre-Advance
Closing”).
Section 2.02
Pre-Advance Closing. The Pre-Advance Closing shall occur remotely by conference call and electronic delivery of documentation
at 10:00 a.m., New York time, on the Effective Date. At the Pre-Advance Closing, the Investor shall advance to the Company the principal
amount of the Pre-Paid Advance as set forth below, and the Company shall deliver
the Promissory Note with a principal amount equal to the full amount of the Pre-Paid Advance, duly executed on behalf of the Company.
The Parties acknowledge and agree that the proceeds of the Pre-Paid Advance shall be used to repay the January Promissory Note in full
and used to make other payments to the Investor as set forth on the closing statement of even date herewith.
Article III. Advances
Section 3.01
Advances; Mechanics. Upon the terms and subject to the conditions of this Agreement, at any time during the Commitment Period,
(i) the Company, at its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor
shall subscribe for and purchase from the Company, Advance Shares by the delivery to the Investor of Advance Notices, and (ii) the Investor,
at its sole discretion shall have the right, but not the obligation, provided that there is a balance outstanding under a Promissory Note,
by the delivery to the Company of Investor Notices, cause an Advance Notice to be deemed delivered to the Investor and the issuance and
sale of Shares to the Investor pursuant to an Advance, on the following terms:
| (a) | Advance Notice. At any time during the Commitment Period the Company may require the Investor to
purchase Shares by delivering an Advance Notice to the Investor, subject to the satisfaction or waiver by the Investor of the conditions
set forth in Annex II, and in accordance with the following provisions: |
| (i) | The Company shall, in its sole discretion, select the number of Advance Shares, not to exceed the Maximum
Advance Amount, it desires to issue and sell to the Investor in each Advance Notice and the time it desires to deliver each Advance Notice. |
| (ii) | There shall be no mandatory minimum Advances and there shall be no non-usages fee for not utilizing the
Commitment Amount or any part thereof. |
| (iii) | For so long as any amount remains outstanding under a Promissory Note, without the prior written consent
of the Investor, the Company may only (other than with respect to a deemed Advance Notice pursuant to an Investor Notice) submit an Advance
Notice (A) if an Amortization Event has occurred and the obligation of the Company to make monthly prepayments under the Promissory Note
has not ceased, and (B) the aggregate purchase price owed to the Company from such Advances (“Advance Proceeds”) shall
be paid by the Investor by offsetting the amount of the Advance Proceeds against an equal amount outstanding under the subject Promissory
Note (first towards accrued and unpaid interest, and then towards outstanding principal). |
| (b) | Investor Notice. At any time during the Commitment Period, provided that there is a balance remaining
outstanding under the Promissory Note, the Investor may, by delivering an Investor Notice to the Company, cause an Advance Notice to be
deemed delivered to the Investor and the issuance and sale of Shares to the Investor pursuant to an Advance, in accordance with the following
provisions: |
| (i) | The Investor shall, in its sole discretion, select the amount of the Advance up to the Maximum Advance
Amount, and the time it desires to deliver each Investor Notice; provided that the amount of the Advance selected shall not exceed the
outstanding balance owed under the Promissory Note on the date of delivery of the Investor Notice. |
| (ii) | The Purchase Price of the Shares in respect of any Advance Notice deemed delivered pursuant to an Investor
Notice shall be equal to the Conversion Price (as defined in the Promissory Note) that would be applicable to the amount of the Advance
selected by the Investor if such amount were to be converted as of the date of delivery of the Investor Notice in accordance with Section
3(a)(i) of the Promissory Note. The Investor shall pay the Purchase Price for the Shares to be issued pursuant to the Investor Notice
by offsetting the amount of the Purchase Price to be paid by the Investor against an equal amount outstanding under a Promissory Note
(first towards accrued and unpaid interest, if any, then towards principal). |
| (iii) | Each Investor Notice shall set forth the amount of the Advance requested, the Purchase Price (determined
in accordance with Section 3.01(b)(ii) above) along with a report by Bloomberg, L.P. indicating the relevant VWAP used in calculating
the Conversion Price, the number of Shares to be issued by the Company and purchased by the Investor, the aggregate amount of accrued
and unpaid interest of the Promissory Note (if any) that shall be offset by the issuance of Shares, the aggregate amount of principal
of the Promissory Note that shall be offset by the issuance of Shares, and the total amount of the Promissory Note that shall be outstanding
following the closing of the Advance, and each Investor Notice shall serve as the Settlement Document in respect of such Advance. |
| (iv) | Upon the delivery of an Investor Notice, a corresponding Advance Notice shall simultaneously and automatically
be deemed to have been delivered by the Company to the Investor requesting the amount of the Advance set forth in the Investor Notice,
and any conditions precedent to such Advance Notice under the terms of this Agreement that have not been satisfied shall be deemed to
have been waived by the Investor. |
| (c) | Date of Delivery of Advance Notice. An Advance Notice shall be deemed delivered on (i) the day
it is received by the Investor if such notice is received by e-mail at or before 9:00 a.m. New York City time (or at such later time if
agreed to by the Investor in its sole discretion), or (ii) the immediately succeeding day if it is received by e-mail after 9:00 a.m.
New York City time. An Advance Notice deemed delivered pursuant to an Investor Notice shall be deemed delivered on the same date upon
which the Investor Notice is received by the Company. Upon receipt of an Advance Notice, the Investor shall promptly provide written confirmation
(which may be by e-mail) of receipt of such Advance Notice. |
Section 3.02
Advance Limitations, Regulatory. Regardless of the Advance requested in an Advance Notice, including an Advance Notice deemed
delivered pursuant to an Investor Notice, the final number of Shares to be issued and sold pursuant to such Advance Notice shall be reduced
(if at all) in accordance with each of the following limitations:
| (a) | Ownership Limitation; Commitment Amount. At the request of the Company, the Investor will inform
the Company in writing of the number of Common Shares the Investor currently beneficially owns. At the request of the Investor, the Company
shall promptly confirm orally or in writing to the Investor the number of Common Shares then outstanding. Notwithstanding anything to
the contrary contained in this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase or acquire,
any Common Shares under this Agreement which, when aggregated with all other Common Shares beneficially owned by the Investor and its
affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial
ownership by the Investor and its affiliates (on an aggregated basis) to exceed 4.99% of the then outstanding voting power or number of
Common Shares (the “Ownership Limitation”). In connection with each Advance Notice, any portion of an Advance that
would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Shares issued and sold to the Investor
hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such Advance
Notice shall be deemed automatically modified to reduce the Advance by an amount equal to such withdrawn portion; provided that in the
event of any such automatic withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
| (b) | Registration Limitation. In no event shall an Advance exceed the amount registered in respect of
the transactions contemplated hereby under the Registration Statement then in effect (the “Registration Limitation”).
In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation shall automatically be
withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the
aggregate amount of the requested Advance by an amount equal to such withdrawn portion; provided that in the event of any such automatic
withdrawal and automatic modification, the Investor will promptly notify the Company of such event. |
| (c) | Compliance with Rules of Principal Market. Notwithstanding anything to the contrary herein, the
Company shall not effect any sales under this Agreement and the Investor shall not have the obligation to purchase Common Shares under
this Agreement to the extent (but only to the extent) that after giving effect to such purchase and sale the aggregate number of Common
Shares issued under this Agreement would exceed 19.99% of the aggregate number of Common Shares issued and outstanding as of the Effective
Date of this Agreement, which number shall be reduced, on a share-for-share basis, by the number of Common Shares issued or issuable pursuant
to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under the applicable
rules of the Principal Market (such maximum number of shares, the “Exchange Cap”) unless the Company’s stockholders
have approved the issuance of Common Shares pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable
rules of the Principal Market. In connection with each Advance Notice, any portion of an Advance that would exceed the Exchange Cap shall
automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified
to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect of each Advance Notice. |
| (d) | Minimum Acceptable Price. |
| (i) | With respect to each Advance Notice delivered by the Company (other than in respect of an Investor Notice)
the Company may notify the Investor of the Minimum Acceptable Price with respect to such Advance by indicating a Minimum Acceptable Price
on the Advance Notice, provided that if no Minimum Acceptable Price is so indicated, then the Minimum Acceptable Price for such Advance
shall be set at a price per share equal to 90% of the closing price of the Common Shares on the Trading Day immediately prior to the Advance
Notice Date. Each Trading Day during a Pricing Period for which (A) the VWAP of the Common Shares is below the Minimum Acceptable Price
in effect with respect to such Advance Notice, or (B) there is no VWAP (each such day, an “Excluded Day”), shall result
in an automatic reduction to the number of Advance Shares set forth in such Advance Notice by one-third (the resulting amount of each
Advance being the “Adjusted Advance Amount”), and each Excluded Day shall be excluded from the Pricing Period for purposes
of determining the Market Price. |
| (ii) | The total Advance Shares in respect of each Advance with any Excluded Day(s) (after reductions have been
made to arrive at the Adjusted Advance Amount) shall be increased by such number of Common Shares (the “Additional Shares”)
equal to the greater of (a) the number of Common Shares sold by the Investor on such Excluded Day(s), if any, or (b) such number of Common
Shares elected to be subscribed for by the Investor, and the price paid per share for each Additional Share shall be equal to the Minimum
Acceptable Price in effect with respect to such Advance Notice multiplied by 95%, provided that this increase shall not cause the total
Advance Shares to exceed the amount set forth in the original Advance Notice or any limitations set forth in Section 3.02. |
Section 3.03
Unconditional Contract. Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge
and agree that upon the Investor’s receipt of a valid Advance Notice from the Company the Parties shall be deemed to have entered
into an unconditional contract binding on both Parties for the purchase and sale of Advance Shares pursuant to such Advance Notice in
accordance with the terms of this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 7.19, the Investor may
sell Common Shares after receipt of an Advance Notice, including during a Pricing Period.
Section 3.04
Closings. The closing of each Advance and each sale and purchase of Advance Shares (whether pursuant to an Advance Notice
delivered by the Company or in connection with an Advance Notice deemed delivered by the Company in connection with an Investor Notice)
(each, a “Closing”) shall take place as soon as practicable on each applicable Advance Date in accordance with the
procedures set forth below. The Company acknowledges that, other than in connection with an Investor Notice, the Purchase Price is not
known at the time an Advance Notice is delivered but shall be determined on each Closing based on the daily prices of the Common Shares
that are the inputs to the determination of the Purchase Price. In connection with each Closing, the Company and the Investor shall fulfill
each of its obligations as set forth below:
| (a) | On or prior to each Advance Date, the Investor shall deliver to the Company a Settlement Document along
with a report by Bloomberg, L.P. (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties)
indicating the VWAP for each of the Trading Days during the Pricing Period or period for determining the Conversion Price, in each case
in accordance with the terms and conditions of this Agreement. In connection with an Investor Notice, the Investor Notice shall serve
as the Settlement Document. |
| (b) | Promptly after receipt of the Settlement Document with respect to each Advance (and, in any event, not
later than one Trading Day after such receipt), the Company will, or will cause its transfer agent to, electronically transfer such number
of Advance Shares to be purchased by the Investor (as set forth in the Settlement Document) by crediting the Investor’s account
or its designee’s account at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has
been requested. Promptly upon receipt of such notification, the Investor shall pay to the Company the aggregate purchase price of the
Shares (as set forth in the Settlement Document) either (i) in the case of an Advance Notice submitted other than while any Promissory
Note is outstanding, in cash in immediately available funds to an account designated by the Company in writing and transmit notification
to the Company that such funds transfer has been requested, or (ii) in the case of an Investor Notice or an Advance Notice while any Promissory
Note is outstanding, as an offset of amounts owed under the Promissory Note as described in Section 3.01(b)(iii). No fractional shares
shall be issued, and any fractional amounts shall be rounded to the next higher whole number of shares. To facilitate the transfer of
the Common Shares by the Investor, the Common Shares will not bear any restrictive legends so long as there is an effective Registration
Statement covering the resale of such Common Shares (it being understood and agreed by the Investor that notwithstanding the lack of restrictive
legends, the Investor may only sell such Common Shares pursuant to the Plan of Distribution set forth in the Prospectus included in the
Registration Statement and otherwise in compliance with the requirements of the Securities Act (including any applicable prospectus delivery
requirements) or pursuant to an available exemption). |
| (c) | On or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents,
instruments and writings expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect
the transactions contemplated herein. |
| (d) | Notwithstanding anything to the contrary in this Agreement, other than in respect of Advance Notices deemed
to be given pursuant to Investor Notices, if on any day during the Pricing Period (i) the Company notifies Investor that a Material Outside
Event has occurred, or (ii) the Company notifies the Investor of a Black Out Period, the parties agree that any pending Advance shall
end and the final number of Advance Shares to be purchased by the Investor at the Closing for such Advance shall be equal to the number
of Common Shares sold by the Investor during the applicable Pricing Period prior to the notification from the Company of a Material Outside
Event or Black Out Period. |
Section 3.05
Hardship.
| (a) | In the event the Investor sells Common Shares after receipt, or deemed receipt of an Advance Notice and
the Company fails to perform its obligations as mandated in this Agreement, the Company agrees that in addition to and in no way limiting
the rights and obligations set forth in Article VI hereto and in addition to any other remedy to which the Investor is entitled at law
or in equity, including, without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage,
or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company
and acknowledges that irreparable damage may occur in the event of any such default. It is accordingly agreed that the Investor shall
be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to specifically enforce (subject to Applicable
Laws and the rules of the Principal Market), without the posting of a bond or other security, the terms and provisions of this Agreement. |
| (b) | In the event the Company provides an Advance Notice and the Investor fails to perform its obligations
as mandated in Section 3.02, the Investor agrees that in addition to and in no way limiting the rights and obligations set forth in Article
VI hereto and in addition to any other remedy to which the Company is entitled at law or in equity, including, without limitation, specific
performance, it will hold the Company harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Investor and acknowledges that irreparable damage may occur in the
event of any such default. It is accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent such
breaches of this Agreement and to specifically enforce (subject to the Securities Act and the rules of the Principal Market), without
the posting of a bond or other security, the terms and provisions of this Agreement. |
Article IV. Representations
and Warranties of the Investor
The Investor represents and
warrants to the Company, as of the date hereof, as of each Advance Notice Date and as of the date of each Pre-Advance Closing that:
Section 4.01
Organization and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of
the Cayman Islands and has the requisite corporate power and authority to enter into and perform its obligations under the Transaction
Documents to which it is a party and to purchase or acquire Shares in accordance with the terms hereof. The decision to invest and the
execution and delivery of the Transaction Documents to which it is a party by the Investor, the performance by the Investor of its obligations
hereunder and the consummation by the Investor of the transactions contemplated hereby have been duly authorized and require no other
proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver the Transaction Documents
to which it is a party and all other instruments on behalf of the Investor or its shareholders. This Agreement and the Transaction Documents
to which it is a party have been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance
thereof by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in
accordance with its terms.
Section 4.02
Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable
of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and
of protecting its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment
in the Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 4.03
No Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review the
Transaction Documents and the transactions contemplated by the Transaction Documents with its own legal counsel and investment and tax
advisors. The Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or any
of the Company’s representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition
of Common Shares hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges
that the Investor may lose all or a part of its investment.
Section 4.04
Investment Purpose. The Investor is acquiring the Common Shares and any Promissory Note for its own account, for investment
purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales
registered under or exempt from the registration requirements of the Securities Act; provided, however, that by making the representations
herein, the Investor does not agree, or make any representation or warranty, to hold any of the Shares for any minimum or other specific
term and reserves the right to dispose of the Shares at any time in accordance with, or pursuant to, a Registration Statement filed pursuant
to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding,
directly or indirectly, with any Person to sell or distribute any of the Shares. The Investor acknowledges
that it will be disclosed as an “underwriter” and a “selling stockholder” in each Registration Statement and in
any Prospectus contained therein to the extent required by applicable law and to the extent the Prospectus is related to the resale of
Registrable Securities.
Section 4.05
Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3)
of Regulation D.
Section 4.06
Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to
the business, finances and operations of the Company and information the Investor deemed material to making an informed investment decision.
The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management
and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor
or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on
the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company
has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the
Company, its employees or any third party other than the representations and warranties of the Company contained in this Agreement. The
Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice,
as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 4.07
Not an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with the Company or any “Affiliate” of the
Company (as that term is defined in Rule 405 promulgated under the Securities Act).
Section 4.08
No Prior Short Sales. At no
time prior to the date of this Agreement has the Investor, its sole member, any of their respective officers, or any entity managed or
controlled by the Investor or its sole member, engaged in or effected, in any manner whatsoever, directly or indirectly, for its own
principal account, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the
Common Shares or (ii) hedging transaction, in either case which establishes a net short position with respect to the Common Shares
that remains in effect as of the date of this Agreement.
Section 4.09
General Solicitation. Neither the Investor, nor any of its affiliates,
nor any person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within
the meaning of Regulation D) in connection with any offer or sale of the Common Shares by the Investor.
Article V. Representations
and Warranties of the Company
Except as set forth in the
disclosure schedule delivered by the Company to the Investor concurrently with this Agreement (which is hereby incorporated by reference
in, and constitutes an integral part of, this Agreement) (the “Disclosure Schedule”), or where specifically set forth
below with respect to certain specified representations and warranties or disclosed in the SEC Documents, the Company hereby makes the
following representations, warranties and covenants to the Investor:
Section 5.01
Organization and Qualification. The Company and each of its Subsidiaries are entities duly formed, validly existing and
in good standing under the laws of the jurisdiction in which they are formed and have the requisite power and authority to own their properties
and to carry on their business as now being conducted. The Company and each of its Subsidiaries is duly qualified to do business and is
in good standing in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except
to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section 5.02
Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance
with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and
the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the
Common Shares) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further
consent or authorization will be required by the Company or its board of directors except for (if and when required) the approval of the
Company’s shareholders. This Agreement and the other Transaction Documents to which the Company is a party have been (or, when executed
and delivered, will be) duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by
the Investor, constitute (or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity
or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal
or state securities law.
Section 5.03
Authorization of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased
by the Investor pursuant to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the Exchange Act. The Shares, when issued, will conform to the description thereof
set forth in or incorporated into the Prospectus. As of the date of the Pre-Advance Closing, and at all times thereafter, the Company
shall have reserved from its duly authorized capital stock not less than the number of shares of Common Shares issuable upon conversion
of the Promissory Note in full (assuming for purposes hereof that (x) such Promissory Note is convertible at a Conversion Price (as defined
in the Promissory Note) equal to the Conversion Price as of the date of determination, and (y) any such conversion shall not take into
account any limitations on the conversion of the Promissory Note set forth therein).
Section 5.04
No Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will
not (i) result in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with
respect to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated),
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of
the Company or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations
that would not reasonably be expected to have a Material Adverse Effect.
Section 5.05
Acknowledgement. The Company acknowledges its obligation to issue the Common Shares upon conversion of the Promissory Notes
in accordance with the terms thereof or upon delivery of an Advance Notice (including upon receipt of an Investor Notice) is absolute
and unconditional, subject to any limitations provided for in the Promissory Notes or herein, regardless of the dilutive effect that such
issuance may have on the ownership interests of other stockholders of the Company.
Section 5.06
SEC Documents; Financial Statements. Since October 28, 2022, the Company has timely filed (giving effect to permissible
extensions in accordance with Rule 12b-25 under the Exchange Act) all SEC Documents. The Company has delivered or made available to the
Investor through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, as applicable. Except as
disclosed in amendments or subsequent filings to the SEC Documents, as of its filing date (or, if amended or superseded by a filing prior
to the date hereof, on the date of such amended or superseded filing), each of the SEC Documents complied in all material respects with
the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and did not contain any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
Section 5.07
Financial Statements. The consolidated financial statements of the Company included or incorporated by reference in the
SEC Documents, together with the related notes and schedules, present fairly, in all material respects, the consolidated financial position
of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange
Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited interim
financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or summary
statements and (iii) such adjustments which are not material, either individually or in the aggregate) during the periods involved; the
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC
Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference
in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents
(including the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information called for in all
material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
Section 5.08
Registration Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements
for and comply with the conditions for the use of Form S-1 under the Securities Act. Each Registration Statement and the offer and sale
of Shares as contemplated hereby, if and when filed, will meet the requirements of Rule 415 under the Securities Act and comply in
all material respects with said rule. Any statutes, regulations, contracts or other documents that are required to be described in a Registration
Statement or a Prospectus, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration
Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were
filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor
and its counsel. The Company has not distributed and, prior to the later to occur of each Advance Notice Date and completion of the distribution
of the Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration
Statement and the Prospectus to which the Investor has consented.
Section 5.09
No Misstatement or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the
date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements of the Securities
Act. At each Advance Notice Date, the Registration Statement, and the Prospectus, as of such date, will conform in all material respects
with the requirements of the Securities Act. Each Registration Statement, when it became or becomes effective, did not, and will not,
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Each Prospectus did not, or will not, include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The
documents incorporated by reference in a Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated
by reference therein will not, when filed with the SEC, contain an untrue statement of a material fact or omit to state a material fact
required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under which
they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Investor specifically for use in the preparation thereof.
Section 5.10
Conformity with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement
thereto, and the documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto,
when such documents were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the
Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and
the Exchange Act, as applicable.
Section 5.11
Equity Capitalization.
(a) Authorized and
Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of
common stock, $0.0001 par value, and 10,000,000 shares of preferred stock, par value $0.0001 par value per share, of which (i)
41,118,593 shares of common stock are issued and outstanding as of the date of this Agreement and (ii) 5,825 shares of Series A
Convertible Preferred Stock are issued and outstanding as of the date of this Agreement.
(b)
Valid Issuance; Available Shares. All of such outstanding shares are duly authorized and have been validly issued and are
fully paid and nonassessable.
(c)
Existing Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any
Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or liens suffered
or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or
exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares,
interests or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for,
any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements
under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities
Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of
its Subsidiaries; (E) there are no securities or instruments containing antidilution or similar provisions that will be
triggered by the issuance of the Shares; and (G) neither the Company nor any Subsidiary has any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement.
Section 5.12
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted,
except as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement
by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge
of the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement.
Section 5.13
Employee Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company or any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material
Adverse Effect.
Section 5.14
Environmental Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply
in all material respects with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging
any failure to comply with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i),
(ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
The term “Environmental Laws” means all applicable federal, state and local laws relating to pollution or protection
of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section 5.15
Title. Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple
or leasehold title to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest other than such as are not material to the business of the Company. Any real property and facilities held
under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its
Subsidiaries.
Section 5.16
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which
the Company and its Subsidiaries are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
Section 5.17
Regulatory Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their
respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permits.
Section 5.18
Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and
to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences, and management is not aware of any material weaknesses that are not disclosed in the SEC Documents
as and when required.
Section 5.19
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s
Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 5.20
Absence of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in
a Form 10-K, there has been no Material Adverse Effect, nor any event or occurrence specifically affecting the Company or its Subsidiaries
that would be reasonably expected to result in a Material Adverse Effect. Since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, except as disclosed in an SEC Document, neither the Company nor any of its Subsidiaries has (i) declared
or paid any dividends, (ii) sold any material assets, individually or in the aggregate, outside of the ordinary course of business, or
(iii) made any material capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the
Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency,
reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe
that any of their respective creditors intend to initiate involuntary bankruptcy proceedings. The Company is Solvent.
Section 5.21
Subsidiaries. Other than as set forth in the Disclosure Schedule, the Company does not own or control, directly or indirectly,
any interest in any other corporation, partnership, association or other business entity.
Section 5.22
Tax Status. Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. The Company has not received
written notification of any unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company and its Subsidiaries know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section 5.23
Certain Transactions. Except as not required to be disclosed pursuant to Applicable Laws, none of the officers or directors
of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any officer or director, or to the knowledge of the Company,
any corporation, partnership, trust or other entity in which any officer or director has a substantial interest or is an officer, director,
trustee or partner.
Section 5.24
Rights of First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal
basis to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents
or other third parties.
Section 5.25
Dilution. The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing
shareholders and could significantly increase the outstanding number of Common Shares.
Section 5.26
Acknowledgment Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting
solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The
Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to this Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives
or agents in connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase
of the Shares hereunder or a Promissory Note. The Company is aware and acknowledges that it shall not be able to request Advances under
this Agreement if the Registration Statement is not effective or if any issuances of Common Shares pursuant to any Advances would violate
any rules of the Principal Market. The Company acknowledges and agrees that it is capable of evaluating and understanding, and understands
and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.
Section 5.27
Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees,
brokerage commissions or similar payments in connection with the transactions herein contemplated, other than in connection with Liberty
Associates, Inc.
Section 5.28
Relationship of the Parties. Neither the Company, nor any of its subsidiaries, affiliates, nor any person acting on its
or their behalf is a client or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has
provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or their
behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section 5.29
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Registration Statement or a Prospectus prepared pursuant to the terms of the Registration Rights
Agreement will be made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
Section 5.30
Compliance with Laws. The Company and each of its Subsidiaries are in compliance in all material respects with Applicable
Laws; the Company has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any
director, officer, or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person
acting on behalf of the Company or any Subsidiary has, has not complied with Applicable Laws, or could give rise to a notice of non-compliance
with Applicable Laws, and is not aware of any pending change or contemplated change to any applicable law or regulation or governmental
position; in each case that would have a Material Adverse Effect.
Section 5.31
Sanctions Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer
or controlled affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by
a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign
Asset Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other
relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked
Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”),
or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings
with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s
Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)).
Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of Advance Shares or any
Pre-Paid Advance, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person
(a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that,
at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that
will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated
by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its
Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor
any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds
blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Article VI. Indemnification
The Investor and the Company
represent to the other the following with respect to itself:
Section 6.01
Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring
the Shares hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Investor and its investment manager, Yorkville Advisors Global, LP, and each of their respective
officers, directors, managers, members, partners, employees and agents (including, without limitation, those retained in connection with
the transactions contemplated by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions,
causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection
therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the Investor
Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof,
or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein;
(b) any material misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement
or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant,
material agreement or material obligation of the Company contained in this Agreement or any other certificate, instrument or document
contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law,
the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible
under Applicable Law.
Section 6.02
Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold
harmless the Company, its Subsidiaries and all of its and their officers, directors, shareholders, employees and agents (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) and each person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”)
from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out
of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for
the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading; provided, however, that the Investor will
only be liable for written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically
for inclusion in the documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf
of the Company specifically for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor
in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant,
agreement or obligation of the Investor contained in this Agreement or any other certificate, instrument or document contemplated hereby
or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable
Laws, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is
permissible under Applicable Laws.
Section 6.03
Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of
any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee
or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying
party under this Article VI, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify
the indemnifying party will not relieve it of liability under this Article VI except to the extent the indemnifying party is prejudiced
by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably
satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that
an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party
fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee
or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor
Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company
Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee
or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee
reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent
of the Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee
of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying
party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article VI shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment therefor
is due.
Section 6.04 Remedies.
The remedies provided for in this Article VI are not exclusive and shall not limit any right or remedy which may be available to any
indemnified person at law or equity. The obligations of
the parties to indemnify or make contribution under this Article VI shall survive expiration
or termination of this Agreement.
Section 6.05
Limitation of liability. Notwithstanding the foregoing, no party shall seek, nor shall any be entitled to recover from the
other party be liable for, special, incidental, indirect, consequential, punitive or exemplary damages.
Article VII.
Covenants
The Company covenants with the
Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party,
during the Commitment Period:
Section 7.01
Effective Registration Statement. From the time that the initial Registration Statement is declared effective by the SEC
and continuing thereafter during the Commitment Period, the Company shall maintain the continuous effectiveness of a Registration Statement
filed with the SEC under the Securities Act pursuant to and in accordance with the Registration Rights Agreement; provided, however, that
in the event there are no Promissory Notes outstanding, the Company shall only be required to use its commercially reasonable efforts
to maintain the continuous effectiveness of the Registration Statement and each subsequent Registration Statement filed with the SEC under
the Securities Act pursuant to and in accordance with the Registration Rights Agreement.
Section 7.02
Listing. Subject to the proviso below, the Company shall continue the listing and trading of its Common Shares and the listing
of the Shares purchased by the Investor hereunder on the Principal Market and to comply with the Company’s reporting, filing and
other obligations under the rules and regulations of the Principal Market; provided that if the Company receives any final and
non-appealable notice that the listing or quotation of the Common Shares on the Principal Market shall be terminated on a date certain,
the Company shall promptly (and in any case within 24 hours) notify the Investor of such fact in writing and shall use its commercially
reasonable efforts to cause the Common Shares to be listed or quoted on another Principal Market.
Section 7.03
Blue Sky. The Company shall take such action, if any, as is necessary by the Company in order to obtain an exemption for
or to qualify the Shares for sale by the Company to the Investor pursuant to the Transaction Documents, and at the request of the Investor,
the subsequent resale of Registrable Securities by the Investor, in each case, under applicable state securities or “Blue Sky”
laws and shall provide evidence of any such action so taken to the Investor from time to time during the Commitment Period; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify, (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction.
Section 7.04
Suspension of Registration Statement.
| (a) | Establishment of a Black Out Period. During the Commitment Period, the Company from time to time
may suspend the use of a Registration Statement by written notice to the Investor in the event that the Company determines in its sole
discretion in good faith that such suspension is necessary to (A) delay the disclosure of material nonpublic information concerning the
Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or
(B) amend or supplement the Registration Statement or Prospectus so that such Registration Statement or Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (a “Black Out Period”). |
| (b) | No Sales by Investor During the Black Out Period. During such Black Out Period, the Investor agrees
not to sell any Common Shares of the Company pursuant to such Registration Statement, but may sell shares pursuant to an exemption from
registration, if available, subject to the Investor’s compliance with Applicable Laws. |
| (c) | Limitations on the Black Out Period. The Company shall not impose any Black Out Period that is
longer than 30 days or in a manner that is more restrictive (including, without limitation, as to duration) than the comparable restrictions
that the Company may impose on transfers of the Company’s equity securities by its directors and senior executive officers. In addition,
the Company shall not deliver any Advance Notice during any Black Out Period. If the public announcement of such material, nonpublic information
is made during a Black Out Period, the Black Out Period shall terminate immediately after such announcement, and the Company shall immediately
notify the Investor of the termination of the Black Out Period. |
Section 7.05
Listing of Common Shares. As of each Advance Notice Date, the Shares to be sold by the Company from time to time hereunder
will have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official
notice of issuance.
Section 7.06
Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice and the first Pre-Paid
Advance, the Investor shall have received an opinion letter from counsel to the Company in form and substance reasonably satisfactory
to the Investor.
Section 7.07
Exchange Act Registration. The Company will file in a timely manner all reports and other documents required of it as a
reporting company under the Exchange Act and, during the Commitment Period, will not take any action or file any document (whether or
not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange
Act.
Section 7.08
Transfer Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the Company
shall (if required by the transfer agent for the Common Shares) deliver to the transfer agent for the Common Shares (with a copy to the
Investor) instructions to issue Common Shares to the Investor free of restrictive legends upon each Advance if the delivery of such instructions
are consistent with Applicable Law, in each case supported as needed by an opinion from legal counsel for the Company.
Section 7.09
Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence
of the Company during the Commitment Period.
Section 7.10
Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify
the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration
Statement or related Prospectus (such information to be held in strict confidence by Investor until such time as it is publicly disclosed
by the Company): (i) the issuance by the SEC or any other Federal governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose; or (ii) the happening of any event that makes any
statement made in the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related Prospectus
or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case
of the related Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
or of the necessity to amend the Registration Statement or supplement a related Prospectus to comply with the Securities Act or any other
law (and the Company will promptly make available to the Investor any such supplement or amendment to the related Prospectus). The Company
shall not deliver to the Investor any Advance Notice, and the Company shall not sell any Shares pursuant to any pending Advance Notice
(other than as required pursuant to Section 2.02(d)), during the continuation of any of the foregoing events (each of the events described
in the immediately preceding clauses (i) through (ii), inclusive, a “Material Outside Event”).
Section 7.11
Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation
of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction
contemplated in such Advance Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance
have been received by the Investor.
Section 7.12
Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares to the Investor hereunder shall
be made in accordance with the provisions and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities
law.
Section 7.13
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing
and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement
thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements
of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of Investor’s
counsel, accountants and other advisors), (iv) the qualification of the Shares under securities laws in accordance with the provisions
of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any Prospectus and any amendments
or supplements thereto requested by the Investor, (vi) the fees and expenses incurred in connection with the listing or qualification
of the Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section 7.14
Current Report. The Company shall, not later than 9:00 a.m., New York City time, on the fourth business day after the date
of this Agreement, file with the SEC a current report on Form 8-K describing all the material terms of the transactions contemplated
by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction Documents (including
any exhibits thereto, the “Current Report”), which Current Report shall include all material, nonpublic information
required to be disclosed in connection with the transactions contemplated by the Transaction Documents. The Company shall provide the
Investor and its legal counsel a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current Report
with the SEC and shall give due consideration to all such comments that are timely received by the Company. In addition, effective
upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality or similar obligations, whether
written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or
agents, on the one hand, and Investor or any of its respective officers, directors, affiliates, employees or agents, on the other hand
shall terminate. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide the Investor with any material, non-public information regarding the Company or any of
its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in the Investor’s sole
discretion). The Company understands and confirms that the Investor will rely on the foregoing representations in effecting resales of
Shares.
Section 7.15
Use of Proceeds. The proceeds from the funding of the Pre-Paid Advance shall be used as set forth on the Closing Statement
and the proceeds from the sale of the Shares by the Company to Investor shall be used by the Company in the manner as will be set forth
in the Prospectus included in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement thereto
filed pursuant to this Agreement, including for working capital purposes for the Company and its subsidiaries. Neither the Company nor
any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein (including any proceeds from the
funding of the Pre-Paid Advance) to repay any advances or loans to any executives or employees of the Company or any Subsidiary or to
make any payments in respect of any related party obligations, including without limitation any payables or notes payable to related parties
of the Company or any Subsidiary whether or not such amounts are described on the balance sheets of the Company in any SEC Documents and
any Subsidiary or described in any “Related Party Transactions” section of any SEC Documents.
Section 7.16
Market Activities. Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling
persons will, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably
be expected to constitute or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of Common Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Shares.
Section 7.17
Trading Information. On the first Trading Day of each week (provided the Investor sold any shares during the prior week)
and otherwise upon the Company’s reasonable request, the Investor agrees to provide the Company with trading reports setting forth
the number and average sales prices of shares of Common Shares sold by the Investor during the prior trading week.
Section 7.18
Selling Restrictions. (i) Except as expressly set forth below, the Investor covenants that from and after the date hereof
through and including the Trading Day next following the expiration or termination of this Agreement as provided in Section 10.01 (the
“Restricted Period”), none of the Investor any of its officers, or any entity managed or controlled by the Investor
(collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”)
shall, directly or indirectly, engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange
Act) of the Common Shares, either for its own principal account or for the principal account of any other Restricted Person. Notwithstanding
the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would
otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under
Rule 200 promulgated under Regulation SHO) the Shares; or (2) selling a number of Common Shares equal to the number of Advance Shares
that such Restricted Person is unconditionally obligated to purchase under a pending Advance Notice but has not yet received from the
Company or the transfer agent pursuant to this Agreement.
Section 7.19
Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person.
Section 7.20
No Frustration; No Variable Rate Transactions, Etc.
| (a) | No Frustration. The Company shall not enter into, announce or recommend to its stockholders any
agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair
the ability or right of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without
limitation, the obligation of the Company to deliver the Shares to the Investor in respect of an Advance Notice. |
| (b) | No Variable Rate Transactions or Related Party Payments. During the period beginning on the date
hereof and ending on the date upon which the Promissory Notes to be issued hereunder has been repaid in full, the Company shall not (A)
repay any loans to any executives or employees of the Company or to make any payments in respect of any related party debt, and (B) effect
or enter into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Shares or any security which entitles
the holder to acquire Common Shares (or a combination of units thereof) involving a Variable Rate Transaction, other than involving a
Variable Rate Transaction with the Investor. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries
to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic
loss and without any bond or other security being required. |
Article VIII.
Non Exclusive Agreement
Subject to Section 7.21 hereof,
this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout the term
of this Agreement and thereafter, issue and allot, or undertake to issue and allot, to any person or persons any shares and/or securities
and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted
into or replaced by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures,
and/or grant any rights with respect to its existing and/or future share capital.
Article IX.
Choice of Law/Jurisdiction
Section 9.01
This Agreement, and any and all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement
or the transactions contemplated herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted,
construed, governed and enforced under and solely in accordance with the substantive and procedural laws of the State of New York, in
each case as in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly
within the State of New York. The Parties further agree that any action between them shall be heard in New York County, New York, and
expressly consent to the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United
States District Court of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted
pursuant to this Agreement.
EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article X. Termination
Section
10.01 Termination.
| (a) | Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest
of (i) the first day of the month next following the 36-month anniversary of the Effective Date, provided that if any Promissory
Note is then outstanding, such termination shall be delayed until such date that all Promissory Notes that was outstanding has been repaid,
or (ii) the date on which the Investor shall have made payment of Advances pursuant to this Agreement for Common Shares equal to the Commitment
Amount. |
| (b) | The Company may terminate this Agreement effective upon five Trading Days’ prior written notice
to the Investor; provided that (i) there are no outstanding Advance Notices, the Common Shares under which have yet to be issued, (ii)
there is not an outstanding Promissory Note, and (iii) the Company has paid all amounts owed to the Investor pursuant to this Agreement.
This Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written
consent unless otherwise provided in such written consent. |
| (c) | Nothing in this Section 10.01 shall be deemed to release the Company or the Investor from any liability
for any breach under this Agreement, or to impair the rights of the Company and the Investor to compel specific performance by the other
party of its obligations under this Agreement. The indemnification provisions contained in Article VI shall survive termination hereunder. |
Article XI. Notices
Other than with respect to
Advance Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.01(b), any notices, consents,
waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by e-mail if sent on a Trading Day, or,
if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by U.S. certified mail, return receipt
requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party
to receive the same. The addresses for such communications (except for Advance Notices which shall be delivered in accordance with Exhibit
C hereof) shall be:
If to the Company, to: |
Coeptis Therapeutics Holdings, Inc.
105 Bradford Rd, Suite 420
Wexford, Pennsylvania 15090
Attn: David Mehalick, CEO
E-mail: dave.mehalick@coeptistx.com
|
With copies (which shall not
constitute notice or delivery of process) to:
|
Meister Seelig & Fein PLLC
125 Park Ave, 7th Floor
New York, New York 10017
Attn: Denis A. Dufresne, Esq.
E-mail: dad@msf-law.com |
If to the Investor(s): |
YA II PN, Ltd. |
|
1012 Springfield Avenue |
|
Mountainside, NJ 07092 |
|
Attention: |
Mark Angelo |
|
|
Portfolio Manager |
|
Telephone: |
(201) 985-8300 |
|
Email: |
mangelo@yorkvilleadvisors.com |
With a Copy (which shall not
constitute notice or delivery of process) to:
|
David Fine, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
|
|
Telephone: |
(201) 985-8300 |
|
Email: |
legal@yorkvilleadvisors.com |
or at such other address and/or e-mail and/or
to the attention of such other person as the recipient party has specified by written notice given to each other party three Business
Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver
or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient
email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service
in accordance with clause (i), (ii) or (iii) above, respectively.
Article XII. Miscellaneous
Section 12.01
Counterparts. This Agreement may be executed in identical counterparts, both which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. Facsimile or other
electronically scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including
by e-mail attachment, shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
Section 12.02 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements
between the Investor, the Company, their respective affiliates and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement contains the entire understanding of the parties with respect to the matters covered herein
and, except as specifically set forth herein, neither the Company nor the Investor makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in
writing signed by the parties to this Agreement.
Section 12.03 Reporting Entity for Common Shares. The reporting entity relied upon for the determination of the trading price or trading
volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto.
The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 12.04 Commitment and Structuring Fee. Each of the parties shall pay its own fees and expenses (including the fees of any
attorneys, accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated
hereby, except that the Company shall pay to the Investor, a structuring fee in the amount of $25,000, of which $12,500 has been paid
prior to the date hereof, and the remaining $12,500 shall be deducted from the gross proceeds at the Pre-Advance Closing. The Company
shall pay a commitment fee in an amount equal to 1% of the Commitment Amount (the “Commitment Fee”) of which (a) 40%
of the Commitment Fee shall be paid within three Trading Days of the date hereof by the issuance to the Investor of such number of Common
Shares that is equal to 40% of the Commitment Fee divided by the closing price of the Common Shares as of the Trading Day immediately
prior to the date hereof (the “Commitment Shares”), and (b) the remaining 60% of the Commitment Fee (the “Deferred
Fee”) shall come due on (and shall only be earned as of) the date upon which the Company has first received Advances in the
aggregate amount of $5,000,000 (the “Deferred Fee Date”) and shall be paid in cash (or by way of an Advance) within
three Trading Days of the Deferred Fee Date. The Commitment Shares issuable hereunder shall be included on the initial Registration Statement.
Subject to the satisfaction or waiver by the Investor of the conditions set forth in Annex II, the Company shall be permitted to
submit an Advance Notice solely for the purposes of generating proceeds to pay the Deferred Fee notwithstanding the limitations set forth
in Section 3.01(a)(iii) herein. The Commitment Shares issuable hereunder shall be included on the initial Registration Statement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as
of the date first set forth above.
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COMPANY: |
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COEPTIS THERAPEUTICS HOLDINGS, INC. |
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By: |
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Name: |
David Mehalick |
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Title: |
President and CEO |
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INVESTOR: |
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YA II PN, Ltd. |
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By: |
Yorkville Advisors Global, LP |
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Its: |
Investment Manager |
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By: |
Yorkville
Advisors Global II, LLC |
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Its: |
General Partner |
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By: |
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Name: |
Matt Beckman |
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Title: |
Member |
ANNEX I TO THE
STANDBY EQUITY PURCHASE AGREEMENT
DEFINITIONS
“Additional Shares”
shall have the meaning set forth in Section 3.02(d)
“Adjusted Advance Amount”
shall have the meaning set forth in Section 3.02(d).
“Advance”
shall mean any issuance and sale of Advance Shares by the Company to the Investor pursuant to this Agreement.
“Advance Date”
shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance, provided that, with respect to an
Advance pursuant to an Investor Notice, the Advance Date shall be the first Trading Day after the date of delivery of such Investor Notice.
“Advance Notice”
shall mean a written notice in the form of Exhibit C attached hereto to the Investor executed by an officer of the Company and setting
forth the number of Advance Shares that the Company desires to issue and sell to the Investor.
“Advance Notice Date”
shall mean each date the Company is deemed to have delivered (in accordance with Section 3.01(c) of this Agreement) an Advance Notice
to the Investor, subject to the terms of this Agreement.
“Advance Shares”
shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to the terms of this Agreement.
“Affiliate”
shall have the meaning set forth in Section 4.07.
“Agreement”
shall have the meaning set forth in the preamble of this Agreement.
“Applicable Laws”
shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having
the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable
laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate
to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of
1977, and (iii) any Sanctions laws.
“Black Out Period”
shall have the meaning set forth in Section 7.01
“Closing”
shall have the meaning set forth in Section 3.05.
“Commitment Amount”
shall mean $20 million of Common Shares.
“Commitment Shares”
shall have the meaning set forth in Section 12.04.
“Commitment Period”
shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement in accordance with
Section 10.01.
“Common Share Equivalents”
shall mean any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Shares, including,
without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Common Shares”
shall have the meaning set forth in the recitals of this Agreement.
“Company”
shall have the meaning set forth in the preamble of this Agreement.
“Company Indemnitees”
shall have the meaning set forth in Section 6.02.
“Condition Satisfaction
Date” shall have the meaning set forth in Annex II.
“Conversion Price”
shall have the meaning set forth in the Promissory Note.
“Daily Traded Amount”
shall mean the daily trading volume of the Company’s Common Shares on the Principal Market during regular trading hours as reported
by Bloomberg L.P.
“Disclosure Schedule”
shall have the meaning set forth in Article V.
“Effective Date”
shall mean the date hereof.
“Environmental Laws”
shall have the meaning set forth in Section 5.14.
“Event of Default”
shall have the meaning set forth in the Promissory Note.
“Exchange Act”
shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall have the meaning set forth in Section 3.02(c).
“Excluded Day”
shall have the meaning set forth in Section 3.02(d).
“Hazardous Materials”
shall have the meaning set forth in Section 5.14.
“Indemnified Liabilities”
shall have the meaning set forth in Section 6.01.
“Investor”
shall have the meaning set forth in the preamble of this Agreement.
“Investor Notice”
shall mean a written notice to the Company in the form set forth herein as Exhibit E attached hereto.
“Investor Indemnitees”
shall have the meaning set forth in Section 6.01.
“Market Price”
shall mean the lowest daily VWAP of the Common Shares during the Pricing Period, other than the daily VWAP on any Excluded Day.
“Material Adverse Effect”
shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the
results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or
(iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under
this Agreement.
“Material Outside Event”
shall have the meaning set forth in Section 7.10.
“Maximum Advance Amount”
means (A) in respect of each Advance Notice delivered by the Company pursuant to Section 3.01(a) of this Agreement, an amount equal to
one hundred percent (100%) of the average of the Daily Traded Amount during the five consecutive Trading Day immediately preceding an
Advance Notice, and (B) in respect of each Advance Notice deemed delivered by the Company pursuant to an Investor Notice, the amount selected
by the Investor in such Investor Notice, which amount shall not exceed the limitations set forth in Section 3.02 of this Agreement.
“Minimum Acceptable
Price” shall mean the minimum price notified by the Company to the Investor in each Advance Notice, if applicable.
“OFAC” shall
have the meaning set forth in Section 5.32.
“Ownership Limitation”
shall have the meaning set forth in Section 3.02(a).
“Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Plan of Distribution”
shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
“Pre-Advance
Closing” shall have the meaning set forth in Section 2.01.
“Pre-Paid
Advance” shall mean have the meaning set forth in Section 2.01.
“Pricing Period”
shall mean the three consecutive Trading Days commencing on the Advance Notice Date.
“Principal Market”
shall mean the Nasdaq Stock Market; provided however, that in the event the Common Shares are ever listed or traded on the New York Stock
Exchange, or the NYSE American, then the “Principal Market” shall mean such other market or exchange on which the Common Shares
are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Common Shares.
“Promissory Note”
shall have the meaning set forth in Section 2.01.
“Prospectus”
shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with
a Registration Statement, including documents incorporated by reference therein.
“Prospectus Supplement”
shall mean any prospectus supplement to a Prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act, including documents
incorporated by reference therein.
“Purchase Price”
shall mean (i) the price per Advance Share obtained by multiplying the Market Price by 95% in respect of an Advance Notice delivered by
the Company, or (ii) in the case of any Advance Notice delivered pursuant to an Investor Notice the Purchase Price set forth in Section
3.01(b)(ii).
“Registration Limitation”
shall have the meaning set forth in Section 2.01(c)(ii).
“Registration Statement”
shall have the meaning set forth in the Registration Rights Agreement.
“Registrable Securities”
shall have the meaning set forth in the Registration Rights Agreement.
“Regulation D”
shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions”
shall have the meaning set forth in Section 5.32.
“Sanctioned Countries”
shall have the meaning set forth in Section 5.32.
“SEC” shall
mean the U.S. Securities and Exchange Commission.
“SEC Documents”
shall mean (1) any registration statement on filed by the Company with the SEC, including the financial statements, schedules, exhibits
and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of the effective
date of such registration statement under the Securities Act, (2) any proxy statement or prospectus filed by the Company with the SEC,
including all documents incorporated or deemed incorporated therein by reference, whether or not included in a registration statement,
in the form in which such proxy statement or prospectus has most recently been filed with the SEC pursuant to Rule 424(b) under the Securities
Act, (3) all reports, schedules, registrations, forms, statements, information and other documents filed with or furnished to the SEC
by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the two years prior to the date hereof, including,
without limitation, the Current Report, (4) each Registration Statement, as the same may be amended from time to time, the Prospectus
contained therein and each Prospectus Supplement thereto and (5) all information contained in such filings and all documents and disclosures
that have been and heretofore shall be incorporated by reference therein.
“Securities Act”
shall have the meaning set forth in the recitals of this Agreement.
“Settlement Document”
in respect of an Advance Notice delivered by the Company, shall mean a settlement document in the form set out on Exhibit D, and
in respect of an Advance Notice deemed delivered pursuant to an Investor Notice, shall mean the Investor Notice containing the information
set forth on Exhibit E.
“Shares”
shall mean the Commitment Shares and the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Solvent”
shall mean, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person
is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital.
The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Subsidiaries”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority
of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or administration
of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
“Trading Day”
shall mean any day during which the Principal Market shall be open for business.
“Transaction Documents”
means, collectively, this Agreement, the Registration Rights Agreement, any Promissory Notes issued by the Company hereunder, and each
of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions contemplated
hereby and thereby, as may be amended from time to time.
“Variable Rate Transaction”
shall mean a transaction in which the Company (i) issues or sells any Common Shares or Common Share Equivalents that are convertible into,
exchangeable or exercisable for, or include the right to receive additional Common Shares either (A) at a conversion price, exercise price,
exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Shares at any time
after the initial issuance of Common Shares or Common Share Equivalents, or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market for the Common Shares (including, without
limitation, any “full ratchet,” “share ratchet,” “price ratchet,” or “weighted average”
anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction), or (ii) enters into any agreement, including but not limited to an “equity line of credit”
or other continuous offering or similar offering of Common Shares or Common Share Equivalents. For the avoidance of doubt, an offering
by the Company of securities pursuant to an effective registration statement (including on a Form S-3) at prevailing market prices at
the time of any sale thereunder is expressly not a Variable Rate Transaction for purposes of this Agreement.
“VWAP” shall
mean for any Trading Day, the daily volume weighted average price of the Common Shares for such Trading Day on the Principal Market during
regular trading hours as reported by Bloomberg L.P through its “AQR” function. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
ANNEX II TO THE
STANDBY EQUITY PURCHASE AGREEMENT
CONDITIONS PRECEDENT TO THE RIGHT OF THE
COMPANY TO DELIVER AN ADVANCE NOTICE
The right of the Company to
deliver an Advance Notice and the obligations of the Investor hereunder with respect to an Advance are subject to the satisfaction or
waiver, on each Advance Notice Date (a “Condition Satisfaction Date”), of each of the following conditions:
| (a) | Accuracy of the Company’s Representations and Warranties. The representations and warranties
of the Company in this Agreement shall be true and correct in all material respects as of the Advance Notice Date, except to the extend
such representations and warranties are as of another date, such representations and warranties shall be true and correct as of such other
date. |
| (b) | Issuance of Commitment Shares. The Company shall have issued the Commitment Shares to an
account designated by the Investor in accordance with Section 12.04, all of which Commitment Fee shall be fully earned and non-refundable,
regardless of whether any Advance Notices are made or settled hereunder or any subsequent termination of this Agreement. |
| (c) | Registration of the Common Shares with the SEC. There is an effective Registration Statement pursuant
to which the Investor is permitted to utilize the prospectus thereunder to resell all of the Common Shares issuable pursuant to such Advance
Notice. The Current Report shall have been filed with the SEC and the Company shall have filed with the SEC in a timely manner all reports,
notices and other documents required under the Exchange Act and applicable SEC regulations during the twelve-month period immediately
preceding the applicable Condition Satisfaction Date. |
| (d) | Authority. The Company shall have obtained all permits and qualifications required by any applicable
state for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice, or shall have the availability of exemptions
therefrom. The sale and issuance of such Common Shares shall be legally permitted by all laws and regulations to which the Company is
subject. |
| (e) | Board. The board of directors of the Company has approved the transactions contemplated by the
Transaction Documents; said approval has not been amended, rescinded or modified and remains in full force and effect as of the date hereof,
and a true, correct and complete copy of such resolutions duly adopted by the board of directors of the Company shall have been provided
to the Investor. |
| (f) | No Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
| (g) | Performance by the Company. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior the applicable Condition Satisfaction Date. |
| (h) | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits or
directly, materially and adversely affects any of the transactions contemplated by this Agreement. |
| (i) | No Suspension of Trading in or Delisting of Common Shares. Trading in the Common Shares shall not
have been suspended by the SEC, the Principal Market or FINRA, the Company shall not have received any final and non-appealable notice
that the listing or quotation of the Common Shares on the Principal Market shall be terminated on a date certain (unless, prior to such
date certain, the Common Shares is listed or quoted on any subsequent Principal Market), nor shall there have been imposed any suspension
of, or restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect
to the Common Shares that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or
restriction on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the
Common Shares is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction). |
| (j) | Authorized. All of the Shares issuable pursuant to the applicable Advance Notice shall have been
duly authorized by all necessary corporate action of the Company. All Shares relating to all prior Advance Notices required to have been
received by the Investor under this Agreement shall have been delivered to the Investor in accordance with this Agreement. |
| (k) | Executed Advance Notice. The representations contained in the applicable Advance Notice shall be
true and correct in all material respects as of the applicable Condition Satisfaction Date. |
EXHIBIT A
REGISTRATION RIGHTS AGREMEENT
EXHIBIT B
CONVERTIBLE PROMISSORY NOTE
EXHIBIT C
ADVANCE NOTICE
Dated: ______________ |
Advance Notice Number: _____________ |
The
undersigned, _______________________, hereby certifies, with respect to the sale of Common Shares of
COEPTIS THERAPEUTICS HOLDINGS, INC. (the “Company”) issuable in connection with this Advance Notice, delivered
pursuant to that certain Standby Equity Purchase Agreement, dated as of [____________] (the “Agreement”), as follows
(with capitalized terms used herein without definition having the same meanings as given to them in the Agreement):
1.The
undersigned is the duly elected ______________ of the Company.
2.There
are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective
amendment to the Registration Statement.
3. The
Company has performed in all material respects all covenants and agreements to be performed by the Company contained in this Agreement
on or prior to the Advance Notice Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.
4.The
number of Advance Shares the Company is requesting is _____________________.
5.The
Minimum Acceptable Price with respect to this Advance Notice is ____________ (if left blank then there will be no Minimum Acceptable Price
for such Advance).
6.The
number of Common Shares of the Company outstanding as of the date hereof is ___________.
The undersigned has executed
this Advance Notice as of the date first set forth above.
COEPTIS THERAPEUTICS HOLDINGS, INC.
By:
EXHIBIT D
SETTLEMENT DOCUMENT
VIA EMAIL
COEPTIS THERAPEUTICS HOLDINGS, INC.
Attn:
Email:
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Below please find the settlement information with respect to the Advance Notice Date of: |
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1. |
Number of Common Shares requested in the Advance Notice |
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2. |
Minimum Acceptable Price for this Advance (if any) |
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3. |
Number of Excluded Days (if any) |
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4. |
Adjusted Advance Amount (if applicable) |
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5. |
Market Price |
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6. |
Purchase Price (Market Price x 95%) per share |
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7. |
Number of Advance Shares due to the Investor |
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8. |
Total Purchase Price due to Company (row 6 x row 7) |
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If there were any Excluded
Days then add the following
9. |
Number of Additional Shares to be issued to the Investor |
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10. |
Additional amount to be paid to the Company by the Investor (Additional Shares in row 9 x Minimum Acceptable Price x 95%) |
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11. |
Total Amount to be paid to the Company (Purchase Price in row 8 + additional amount in row 10) |
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12. |
Total Advance Shares to be issued to the Investor (Advance Shares due to the Investor in row 7 + Additional Shares in row 9) |
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Please issue the number of Advance Shares due to the Investor to the account of the Investor as follows:
Investor’s
DTC participant #:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
COUNTRY:
Contact person:
Number and/or email:
Sincerely,
YA II PN, LTD.
Agreed and approved By: COEPTIS THERAPEUTICS HOLDINGS, INC.:
__________________________________
Name:
Title:
EXHIBIT E
INVESTOR NOTICE,
CORRESPONDING ADVANCE NOTICE,
AND SETTLEMENT DOCUMENT
YA II PN, LTD.
Dated: ______________ |
Investor Notice Number: _____________ |
On behalf of YA II PN, LTD.
(the “Investor”), the undersigned hereby certifies, with respect to the purchase of Common Shares of COEPTIS THERAPEUTICS
HOLDINGS, INC. (the “Company”) issuable in connection with this Investor Notice, delivered pursuant to that certain
Standby Equity Purchase Agreement, dated as of [_____________], as amended and supplemented from time to time (the “Agreement”),
as follows:
1. |
Advance requested in the Advance Notice |
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2. |
Purchase Price (as determined in accordance with Section 3.01(b)(ii) of the Agreement) |
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3. |
Number of Shares due to Investor |
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The aggregate purchase price
of the Shares to be paid by Investor pursuant to this Investor Notice and corresponding Advance Notice shall be offset against amounts
outstanding under the Pre-Paid Advance evidenced by the Promissory Note dated [___________ ] (first towards accrued and unpaid interest,
and then towards outstanding principal) as follows (and this information shall satisfy the obligations of the Investor to deliver a Settlement
Document pursuant to the Agreement):
1. |
Amount offset against accrued and unpaid Interest |
$[____________] |
2. |
Amount offset against Principal |
$[____________] |
3. |
Total amount of the Promissory Note outstanding following the Advance |
$[____________] |
Please issue the number of Shares
due to the Investor to the account of the Investor as follows:
Investor’s
DTC participant #:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
The undersigned has executed this Investor Notice as of the date first
set forth above.
YA II PN, Ltd. |
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By: |
Yorkville Advisors Global, LP |
Its: |
Investment Manager |
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By: |
Yorkville
Advisors Global II, LLC |
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Its: |
General Partner |
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By: |
_________________________________ |
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Name: |
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Exhibit 10.2
NEITHER THIS NOTE NOR THE SECURITIES INTO
WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE.
THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
COEPTIS
THERAPEUTICS HOLDINGS, INC.
Convertible
Promissory Note
Original Principal
Amount: $1,304,758
Issuance Date: November 1, 2024
Number: COEP-1
FOR VALUE RECEIVED, COEPTIS
THEREPEUTICS HOLDINGS, INC., an entity organized under the laws of the State of Delaware (the "Company"), hereby promises
to pay to the order of YA II PN, LTD., or its registered assigns (the “Holder”), the amount set out above as the Original
Principal Amount (as reduced pursuant to the terms hereof pursuant to repayment, redemption, conversion or otherwise, the “Principal”)
and premium due thereon, as applicable, in each case when due, and to pay interest (“Interest”) on any outstanding
Principal at the applicable Interest Rate (as defined below) from the date set out above as the Issuance Date (the “Issuance
Date”) until the same becomes due and payable, whether upon the Maturity Date or acceleration, conversion, redemption or otherwise
(in each case in accordance with the terms hereof). Certain capitalized terms used herein are defined in Section (13). The Issuance Date
is the date of the first issuance of this Convertible Promissory Note (the “Note”) regardless of the number of transfers
and regardless of the number of instruments, which may be issued to evidence such Note.
This Note is being issued pursuant
to Section 2.01 of the Standby Equity Purchase Agreement, dated November 1, 2024 (as may be amended, amended and restated, extended, supplemented
or otherwise modified in writing from time to time, the “SEPA”), between the Company and the YA II PN, Ltd., as the
Investor. This Note may be repaid in accordance with the terms of the SEPA, including, without limitation, pursuant to Advance Notices
given by the Company or Investor Notices and corresponding Advance Notices deemed given by the Company in connection with such Investor
Notices. The Holder also has the option of converting on one or more occasions all or part of the then outstanding balance under this
Note by delivering to the Company one or more Conversion Notices in accordance with Section 3 of this Note.
(1)
GENERAL TERMS
(a)
Maturity Date. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding
Principal, accrued and unpaid Interest, and any other amounts outstanding pursuant to the terms of this Note. The "Maturity Date"
shall be November 1, 2025, as may be extended at the option of the Holder. Other than as specifically permitted by this Note, the Company
may not prepay or redeem any portion of the outstanding Principal and accrued and unpaid Interest.
(b)
Interest Rate and Payment of Interest. Interest shall accrue on the outstanding Principal balance hereof at an annual rate
equal to 8% (“Interest Rate”), which Interest Rate shall increase to an annual rate of 18% upon the occurrence of an
Event of Default (for so long as such event remains uncured). Interest shall be calculated based on a 365-day year and the actual number
of days elapsed, to the extent permitted by applicable law.
(c)
Monthly Payments. If, any time after the Issuance Date set forth above, and from time to time thereafter, an Amortization
Event has occurred, then the Company shall make monthly payments beginning on the 7th Trading Day after the Amortization Event Date and
continuing on the same day of each successive Calendar Month until the entire outstanding principal amount shall have been repaid. Each
monthly payment shall be in an amount equal to the sum of (i) $250,000 of Principal in the aggregate among this Note and all Other Notes
(or the outstanding Principal if less than such amount) (the “Amortization Principal Amount”), plus (ii) a payment
premium equal to 5% in respect of such Amortization Principal amount, provided that, the payment premium equal to 5% shall not
apply in respect to any amount that is paid directly from an Advance from the SEPA, and (iii) accrued and unpaid interest hereunder
as of each payment date. The obligation of the Company to make monthly prepayments related to an Amortization Event shall cease (with
respect to any payment that has not yet come due) if at any time after the Amortization Event Date (A) in the event of a Floor Price Event,
on the date that is the 7th consecutive Trading Day that the daily VWAP is greater than 110% of the Floor Price then in effect, or (B)
in the event of an Exchange Cap Event, the date the Company has obtained stockholder approval to increase the number of Common Shares
under the Exchange Cap and/ or the Exchange Cap no longer applies unless a subsequent Amortization Event occurs.
(d)
Optional Redemption. The Company at its option shall have the right, but not the obligation, to redeem (“Optional
Redemption”) early a portion or all amounts outstanding under this Note as described in this Section; provided that (i)
the Company provides the Holder with at least 10 Trading Days’ prior written notice (each, a “Redemption Notice”)
of its desire to exercise an Optional Redemption, and (ii) on the date the Redemption Notice is issued, the VWAP of the Common Stock is
less than the Fixed Price. Each Redemption Notice shall be irrevocable and shall specify the outstanding balance of the Note to be redeemed
and the Redemption Amount. The “Redemption Amount” shall be equal to the outstanding Principal balance being redeemed
by the Company, plus the payment premium equal to 5%, plus all accrued and unpaid interest. After receipt of the Redemption Notice, the
Holder shall have 10 Trading Days to elect to convert all or any portion of the Note. On the 11th Trading Day after the Redemption Notice,
the Company shall deliver to the Holder the Redemption Amount with respect to the Principal amount redeemed after giving effect to conversions
or other payments effected during the 10 Trading Day period.
(e)
Payment Dates, Other Notes. Whenever any payment or other obligation hereunder shall be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day.
(2)
EVENTS OF DEFAULT.
(a)
An “Event of Default”, wherever used herein, means any one of the following events (whatever the reason and
whether it shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court,
or any order, rule or regulation of any administrative or governmental body):
(i)
The Company's failure to pay to the Holder any amount of Principal, any premium due thereon, Interest, or other amounts when and
as due under this Note or any other Transaction Document within ten (10) Trading Days after such payment is due, provided however, no
Event of Default shall be deemed to have occurred to the extent that such missed payment amount has been converted into Common Shares
in accordance with Section (3)(a)(i) hereof, and such Common Shares have been delivered to the Holder in accordance with Section (3)(b)
hereof;
(ii)
The Company or any Subsidiary of the Company shall commence, or there shall be commenced against the Company or any Subsidiary
of the Company under any applicable bankruptcy or insolvency laws as now or hereafter in effect or any successor thereto, or the Company
or any Subsidiary of the Company commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction, whether now or hereafter in effect relating to the Company
or any Subsidiary of the Company, any such bankruptcy, insolvency or other proceeding which remains undismissed for a period of sixty
one (61) days; or the Company or any Subsidiary of the Company is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or the Company or any Subsidiary of the Company suffers any appointment of any custodian,
private or court appointed receiver or the like for it or all or substantially all of its property which continues undischarged or unstayed
for a period of sixty one (61) days; or the Company or any Subsidiary of the Company makes a general assignment of all or substantially
all of its assets for the benefit of creditors; or the Company or any Subsidiary of the Company shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally as they become due; or the Company or any Subsidiary of the Company
shall call a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; or the Company
or any Subsidiary of the Company shall by any act or failure to act expressly indicate its consent to, approval of or acquiescence in
any of the foregoing; or any corporate or other action is taken by the Company or any Subsidiary of the Company for the purpose of effecting
any of the foregoing;
(iii)
The Company or any Subsidiary of the Company shall default, in any of its obligations under any debenture, mortgage, credit agreement
or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may
be secured or evidenced any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement of the Company
or any Subsidiary of the Company in an amount exceeding $1,000,000, whether such indebtedness now exists or shall hereafter be created
and such default is not cured within the time prescribed by the documents governing such indebtedness or if no time is prescribed, within
ten (10) Trading Days, and as a result, such indebtedness becomes or is declared due and payable;
(iv)
The Common Shares shall cease to be quoted or listed for trading, as applicable, on any Primary Market for a period of ten (10)
consecutive Trading Days;
(v)
The Company’s (A) failure to deliver the required number of Common Shares to the Holder within two (2) Trading Days after
the applicable Share Delivery Date or (B) notice, written or oral, to any holder of the Note, including by way of public announcement,
at any time, of its intention not to comply with a request for conversion of any Note into Common Shares that is tendered in accordance
with the provisions of the Note;
(vi)
The Company shall fail for any reason to deliver the payment in cash pursuant to a Buy-In (as defined herein) within five (5) Business
Days after such payment is due;
(vii)
The Company’s failure to timely file with the Commission any Periodic Report on or before the due date of such filing as
established by the Commission, it being understood, for the avoidance of doubt, that due date includes any permitted filing deadline extension
under Rule 12b-25 under the Exchange Act;
(viii)
Any material representation or warranty made or deemed to be made by or on behalf of the Company in or in connection with any Transaction
Document, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such
representation or warranty already qualified by materiality, such representation or warranty shall prove to have been incorrect) when
made or deemed made;
(ix)
Any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than
as expressly permitted hereunder or thereunder, ceases to be in full force and effect; or the Company contests in writing the validity
or enforceability of any provision of any Transaction Document; or the Company denies in writing that it has any or further liability
or obligation under any Transaction Document, or purports in writing to revoke, terminate (other than in line with the relevant termination
provisions) or rescind any Transaction Document;
(x)
The Company uses the proceeds of the issuance of this Note, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase or carry margin stock (within the meaning of Regulations T, U and X of the Federal Reserve Board,
as in effect from time to time and all official rulings and interpretations thereunder or thereof), or to extend credit to others for
the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose; or
(xi)
Any Event of Default (as defined in the Other Notes or in any Transaction Document other than this Note) occurs with respect to
any Other Notes, or any breach of any material term of any other debenture, note, or instrument held by the Holder in the Company or any
agreement between or among the Company and the Holder; or
(xii)
The Company shall fail to observe or perform any material covenant, agreement or warranty contained in, or otherwise commit any
material breach or default of any provision of this Note (except as may be covered by Section (2)(a)(i) through (2)(a)(xii) hereof) or
any other Transaction Document, which is not cured or remedied within the time prescribed or if no time is prescribed within ten (10)
Business Days.
(b) During the time that any portion of this Note is outstanding, if any Event of Default has occurred (other than an event with respect
to the Company described in Section (2)(a)(ii)), the full unpaid Principal amount of this Note, together with interest and other amounts
owing in respect thereof, to the date of acceleration shall become at the Holder's election given by notice pursuant to Section (5), immediately
due and payable in cash; provided that, in the case of any event with respect to the Company described in Section (2)(a)(ii), the full
unpaid Principal amount of this Note, together with interest and other amounts owing in respect thereof to the date of acceleration, shall
automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company. Furthermore, in addition to any other remedies, the Holder shall have the right (but not the obligation)
to convert, on one or more occasions all or part of the Note in accordance with Section (3) (and subject to the limitations set out in
Section (3)(c)(i) and Section (3)(c)(ii)) at any time after an Event of Default has occurred and is continuing until all amounts outstanding
under this Note have been repaid in full. The Holder need not provide and the Company hereby waives any presentment, demand, protest or
other notice of any kind, (other than required notice of conversion) and the Holder may immediately enforce any and all of its rights
and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by
the Holder in writing at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default
or impair any right consequent thereon.
(3)
CONVERSION OF NOTE. This Note shall be convertible into shares of the Company's Common Shares, on the terms and conditions
set forth in this Section (3).
(a)
Conversion Right. Subject to the limitations of Section (3)(c), at any time or times on or after the Issuance Date, the
Holder shall be entitled to convert any portion of the outstanding and unpaid Conversion Amount into fully paid and nonassessable Common
Shares in accordance with Section (3)(b), at the Conversion Price. The number of Common Shares issuable upon conversion of any Conversion
Amount pursuant to this Section (3)(a) shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price. The Company
shall not issue any fraction of a share of Common Shares upon any conversion. All calculations under this Section (3) shall be rounded
to the nearest $0.0001. If the issuance would result in the issuance of a fraction of a share of Common Shares, the Company shall round
such fraction of a share of Common Shares up to the nearest whole share. The Company shall pay any and all transfer, stamp and similar
taxes that may be payable with respect to the issuance and delivery of Common Shares upon conversion of any Conversion Amount.
(b)
Mechanics of Conversion.
(i)
Optional Conversion. To convert any Conversion Amount into Common Shares on any date (a "Conversion Date"),
the Holder shall (A) transmit by email (or otherwise deliver), for receipt on or prior to 11:59 p.m., New York Time, on such date, a copy
of an executed notice of conversion in the form attached hereto as Exhibit I (the "Conversion Notice") to the
Company and (B) if required by Section (3)(b)(iii), surrender this Note to a nationally recognized overnight delivery service for delivery
to the Company (or an indemnification undertaking reasonably satisfactory to the Company with respect to this Note in the case of its
loss, theft or destruction). On or before the second (2nd) Trading Day following the date of receipt of a Conversion Notice (the "Share
Delivery Date"), the Company shall (X) if legends are not required to be placed on certificates of Common Shares and provided
that the Transfer Agent is participating in the Depository Trust Company's ("DTC") Fast Automated Securities Transfer
Program, credit such aggregate number of Common Shares to which the Holder shall be entitled to the Holder's or its designee's balance
account with DTC through its Deposit Withdrawal Agent Commission system or (Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and deliver to the address as specified in the Conversion Notice, a certificate, registered
in the name of the Holder or its designee, for the number of Common Shares to which the Holder shall be entitled which certificates shall
not bear any restrictive legends unless required pursuant to rules and regulations of the Commission. If this Note is physically surrendered
for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted,
then the Company shall as soon as practicable and in no event later than three (3) Business Days after receipt of this Note and at its
own expense, issue and deliver to the holder a new Note representing the outstanding Principal not converted. The Person or Persons entitled
to receive the Common Shares issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders
of such Common Shares upon the transmission of a Conversion Notice.
(ii)
Company's Failure to Timely Convert. If within three (3) Trading Days after the Company's receipt of an email copy of a
Conversion Notice the Company shall fail to issue and deliver a certificate to the Holder or credit the Holder's balance account with
DTC for the number of Common Shares to which the Holder is entitled upon such holder's conversion of any Conversion Amount (a "Conversion
Failure"), and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) Common Shares
to deliver in satisfaction of a sale by the Holder of Common Shares issuable upon such conversion that the Holder anticipated receiving
from the Company (a "Buy-In"), then the Company shall, within three (3) Business Days after the Holder's request and
in the Holder's discretion, either (i) pay cash to the Holder in an amount equal to the Holder's total purchase price (including brokerage
commissions and other out of pocket expenses, if any) for the Common Shares so purchased (the “Buy-In Price”), at which
point the Company's obligation to deliver such certificate (and to issue such Common Shares) shall terminate, or (ii) promptly honor its
obligation to deliver to the Holder a certificate or certificates representing such Common Shares and pay cash to the Holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Common Shares, times (B) the Closing Price on
the Conversion Date.
(iii)
Book-Entry. Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Note in accordance
with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion
Amount represented by this Note is being converted or (B) the Holder has provided the Company with prior written notice (which notice
may be included in a Conversion Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company
shall maintain records showing the Principal and Interest converted and the dates of such conversions or shall use such other method,
reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion.
(c)
Limitations on Conversions.
(i)
Beneficial Ownership. The Holder shall not have the right to convert any portion of this Note to the extent that after giving
effect to such conversion, the Holder, together with any affiliate thereof, would beneficially own (as determined in accordance with Section
13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 4.99% of the number of Common Shares outstanding immediately
after giving effect to such conversion or receipt of shares as payment of interest. Since the Holder will not be obligated to report to
the Company the number of Common Shares it may hold at the time of a conversion hereunder, unless the conversion at issue would result
in the issuance of Common Shares in excess of 4.99% of the then outstanding Common Shares without regard to any other shares which may
be beneficially owned by the Holder or an affiliate thereof, the Holder shall have the authority and obligation to determine whether the
restriction contained in this Section will limit any particular conversion hereunder and to the extent that the Holder determines that
the limitation contained in this Section applies, the determination of which portion of the Principal amount of this Note is convertible
shall be the responsibility and obligation of the Holder. If the Holder has delivered a Conversion Notice for a Principal amount of this
Note that, without regard to any other shares that the Holder or its affiliates may beneficially own, would result in the issuance in
excess of the permitted amount hereunder, the Company shall notify the Holder of this fact and shall honor the conversion for the maximum
Principal amount permitted to be converted on such Conversion Date in accordance with Section (3)(a) and, any Principal amount tendered
for conversion in excess of the permitted amount hereunder shall remain outstanding under this Note. The provisions of this Section may
be waived by a Holder (but only as to itself and not to any other Holder) upon not less than 65 days prior notice to the Company. Other
Holders shall be unaffected by any such waiver.
(ii)
Principal Market Limitation. Notwithstanding anything in this Note to the contrary, the Company shall not issue any Common
Shares upon conversion of this Note, or otherwise, if the issuance of such Common Shares, together with any Common Shares issued in connection
the SEPA and with any other related transactions that may be considered part of the same series of transactions, would exceed the aggregate
number Common Shares that the Company may issue in a transaction in compliance with the Company’s obligations under the rules or
regulations of Nasdaq Stock Market LLC (the “Nasdaq”) and shall be referred to as the “Exchange Cap,”
except that such limitation shall not apply if the Company’s stockholders have approved such issuances on such terms in excess of
the Exchange Cap in accordance with the rules of the Nasdaq.
(d)
Other Provisions.
(i)
All calculations under this Section (4) shall be rounded to the nearest $0.0001 or whole share.
(ii)
So long as this Note or any Other Notes remain outstanding, the Company shall have reserved from its duly authorized share capital,
and shall have instructed its transfer agent to irrevocably reserve, the maximum number of Common Shares issuable upon conversion of this
Note and the Other Notes (assuming for purposes hereof that (x) this Note and such Other Notes are convertible at the Floor Price as of
the date of determination, (y) any such conversion shall not take into account any limitations on the conversion of the Note or Other
Notes set forth herein or therein (the “Required Reserve Amount”), provided that at no time shall the number of Common
Shares reserved pursuant to this Section (3)(d)(ii) be reduced other than proportionally with respect to all Common Shares in connection
with any conversion (other than pursuant to the conversion of this Note and the Other Notes in accordance with their terms) and/or cancellation,
or reverse stock split. If at any time the number of Common Shares authorized but unissued and not otherwise reserved for issuance (including
(i) in relation to equity or debt securities convertible into or exchangeable or exercisable for or that can be settled in Common Shares
(other than the Note and the Other Notes) and (ii) Common Shares remaining available for issuance under the Company’s equity incentive
plans) is not sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to propose
to its general meeting of shareholders an increase of its authorized share capital necessary to meet the Company's obligations pursuant
to this Note, recommending that shareholders vote in favor of such an increase. If at any time the number of Common Shares that remain
available for issuance under the Exchange Cap is less than 100% of the maximum number of shares issuable upon conversion of all the Notes
and Other Notes then outstanding (assuming for purposes hereof that (x) the Notes are convertible at the Variable Price, and (y) any such
conversion shall not take into account any limitations on the conversion of the Note, other than the Floor Price), the Company will use
commercially reasonable efforts to promptly call and hold a shareholder meeting for the purpose of seeking the approval of its shareholders
as required by the applicable rules of the Principal Market, for issuances of shares in excess of the Exchange Cap. The Company covenants
that, upon issuance in accordance with conversion of this Note in accordance with its terms, the Common Shares, when issued, will be validly
issued, fully paid and nonassessable.
(iii)
Nothing herein shall limit a Holder's right to pursue actual damages or declare an Event of Default pursuant to Section (2) herein
for the Company’s failure to deliver certificates representing Common Shares upon conversion within the period specified herein
and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise
of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable
law.
(iv)
Legal Opinions. The Company is obligated to cause its legal counsel to deliver legal opinions to the Company’s transfer
agent in connection with any legend removal upon the expiration of any holding period and satisfaction of other requirements for which
the Underlying Shares may bear legends restricting the transfer thereof. To the extent that such requirements have been satisfied and
a legal opinion is not provided (either timely or at all), then the Company agrees to reimburse the Holder for all reasonable costs incurred
by the Holder in connection with any legal opinions paid for by the Holder in connection with sale or transfer of Underlying Common Shares.
The Holder shall notify the Company of any such costs and expenses it incurs that are referred to in this section from time to time and
all amounts owed hereunder shall be paid by the Company with reasonable promptness.
(e)
Adjustment of Conversion Price upon Subdivision or Combination of Common Shares. If the Company, at any time while this
Note is outstanding, shall (a) pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Shares
or any other equity or equity equivalent securities payable in Common Shares, (b) subdivide outstanding Common Shares into a larger number
of shares, (c) combine (including by way of reverse stock split) outstanding Common Shares into a smaller number of shares, or (d) issue
by reclassification of Common Shares any shares of capital stock of the Company, then each of the Fixed Price and the Floor Price shall
be multiplied by a fraction of which the numerator shall be the number of Common Shares (excluding treasury shares, if any) outstanding
before such event and of which the denominator shall be the number of Common Shares outstanding after such event. Any adjustment made
pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination
or re-classification.
(f)
Other Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation
of any Fundamental Transaction pursuant to which holders of Common Shares are entitled to receive securities or other assets with respect
to or in exchange for Common Shares (a "Corporate Event"), the Company shall make appropriate provision to ensure that
the Holder will thereafter have the right to receive upon a conversion of this Note, at the Holder's option, (i) in addition to the Common
Shares receivable upon such conversion, such securities or other assets to which the Holder would have been entitled with respect to such
Common Shares had such Common Shares been held by the Holder upon the consummation of such Corporate Event (without taking into account
any limitations or restrictions on the convertibility of this Note) or (ii) in lieu of the Common Shares otherwise receivable upon such
conversion, such securities or other assets received by the holders of Common Shares in connection with the consummation of such Corporate
Event in such amounts as the Holder would have been entitled to receive had this Note initially been issued with conversion rights for
the form of such consideration (as opposed to Common Shares) at a conversion rate for such consideration commensurate with the Conversion
Price. Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Required Holders. The provisions
of this Section shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations
on the conversion or redemption of this Note.
(g)
Whenever the Conversion Price is adjusted pursuant to Section (3) hereof, the Company shall promptly provide the Holder with a
written notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such
adjustment.
(h)
In case of any (1) merger or consolidation of the Company or any Subsidiary of the Company with or into another Person, or (2)
sale by the Company or any Subsidiary of the Company of more than one-half of the assets of the Company in one or a series of related
transactions, a Holder shall have the right to (A) exercise any rights under Section (3)(b), (B) convert the aggregate amount of this
Note then outstanding into the shares of stock and other securities, cash and property receivable upon or deemed to be held by holders
of Common Shares following such merger, consolidation or sale, and such Holder shall be entitled upon such event or series of related
events to receive such amount of securities, cash and property as the Common Shares into which such aggregate Principal amount of this
Note could have been converted immediately prior to such merger, consolidation or sales would have been entitled, or (C) in the case of
a merger or consolidation, require the surviving entity to issue to the Holder a convertible Note with a Principal amount equal to the
aggregate Principal amount of this Note then held by such Holder, plus all accrued and unpaid interest and other amounts owing thereon,
which such newly issued convertible Note shall have terms identical (including with respect to conversion) to the terms of this Note,
and shall be entitled to all of the rights and privileges of the Holder of this Note set forth herein and the agreements pursuant to which
this Note was issued. In the case of clause (C), the conversion price applicable for the newly issued shares of convertible preferred
stock or convertible debentures shall be based upon the amount of securities, cash and property that each Common Shares would receive
in such transaction and the Conversion Price in effect immediately prior to the effectiveness or closing date for such transaction. The
terms of any such merger, sale or consolidation shall include such terms so as to continue to give the Holder the right to receive the
securities, cash and property set forth in this Section upon any conversion or redemption following such event. This provision shall similarly
apply to successive such events.
(4)
REISSUANCE OF THIS NOTE.
(a)
Transfer. This Note may only be transferred together with the corresponding rights and obligations under the SEPA. If this
Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver
upon the order of the Holder a new Note (in accordance with Section (4)(d)), registered in the name of the registered transferee or assignee,
representing the outstanding Principal being transferred by the Holder (along with any accrued and unpaid interest thereof) and, if less
then the entire outstanding Principal is being transferred, a new Note (in accordance with Section (4)(d)) to the Holder representing
the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that,
by reason of the provisions of Section (3)(b)(iii) following conversion or redemption of any portion of this Note, the outstanding Principal
represented by this Note may be less than the Principal stated on the face of this Note.
(b)
Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the
Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver to the Holder a new Note (in accordance with Section (4)(d)) representing the outstanding Principal.
(c)
Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for a new Note or Notes (in accordance with Section (4)(d)) representing in the aggregate the outstanding
Principal of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder
at the time of such surrender.
(d)
Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms hereof, such new Note
(i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 5(4)(a) or Section 5(4)(c), the Principal designated by the Holder which,
when added to the Principal represented by the other new Note issued in connection with such issuance, does not exceed the Principal remaining
outstanding under this Note immediately prior to such issuance of new Note), (iii) shall have an issuance date, as indicated on the face
of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and
(v) shall represent accrued and unpaid Interest from the Issuance Date.
(5)
NOTICES. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof
must be in writing by letter and email and will be deemed to have been delivered: upon the later of (A) either (i) receipt, when delivered
personally or (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case,
properly addressed to the party to receive the same and (B) receipt, when sent by electronic mail. The addresses and email addresses
for such communications shall be:
If to the Company, to: |
Coeptis Therapeutics Holdings, Inc.
105 Bradford Rd, Suite 420
Wexford, Pennsylvania 15090
Attn: David Mehalick, CEO
E-mail: dave.mehalick@coeptistx.com
|
With copies (which shall not
constitute notice or delivery of process) to:
|
Meister Seelig & Fein PLLC
125 Park Ave, 7th Floor
New York, New York 10017
Attn: Denis A. Dufresne, Esq.
E-mail: dad@msf-law.com |
|
|
If to the Holder: |
YA II PN, Ltd |
|
c/o Yorkville Advisors Global, LLC
1012 Springfield Avenue |
|
Mountainside, NJ 07092 |
|
Attention: Mark Angelo |
|
Telephone: 201-985-8300 |
|
Email: Legal@yorkvilleadvisors.com |
or at such other address and/or
email and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three
(3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice,
consent, waiver or other communication, (ii) electronically generated by the sender's email service provider containing the time, date,
recipient email address or (iii) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
(6)
Except as expressly provided herein, no provision of this Note shall alter or impair the obligations of the Company, which are
absolute and unconditional, to pay the Principal of, interest and other charges (if any) on, this Note at the time, place, and rate, and
in the currency, herein prescribed. This Note is a direct obligation of the Company. As long as this Note is outstanding, the Company
shall not and shall cause their subsidiaries not to, without the consent of the Holder, (i) amend its certificate of incorporation, bylaws
or other charter documents so as to adversely affect any rights of the Holder; (ii) repay, repurchase or offer to repay, repurchase or
otherwise acquire shares of its Common Shares or other equity securities; or (iii) enter into any agreement with respect to any of the
foregoing.
(7)
This Note shall not entitle the Holder to any of the rights of a stockholder of the Company, including without limitation, the
right to vote, to receive dividends and other distributions, or to receive any notice of, or to attend, meetings of stockholders or any
other proceedings of the Company, unless and to the extent converted into Common Shares in accordance with the terms hereof.
(8)
CHOICE OF LAW; VENUE; WAIVER OF JURY TRIAL
(a)
Governing Law. This Note and the rights and obligations of the Parties hereunder shall, in all respects, be governed by,
and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing
Jurisdiction”) (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including
all matters of construction, validity and performance.
(b)
Jurisdiction; Venue; Service.
(i)
The Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction
and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States District Court for the Governing
Jurisdiction.
(ii)
The Company agrees that venue shall be proper in any court of the Governing Jurisdiction selected by the Holder or, if a basis
for federal jurisdiction exists, in any United States District Court in the Governing Jurisdiction. The Company waives any right to object
to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether
in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue
or inconvenience of forum.
(iii)
Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or
tort or otherwise, brought by the Company against the Holder arising out of or based upon this Note or any matter relating to this Note,
or any other Transaction Document, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The
Company shall not file any counterclaim against the Holder in any suit, claim, action, litigation or proceeding brought by the Holder
against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which the Holder brought
such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless
filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Holder against the Company. The Company
agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding
brought by the Company against the Holder in any court outside the Governing Jurisdiction should be dismissed or transferred to a court
located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees that it will not bring or commence
any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort
or otherwise, against the Holder arising out of or based upon this Note or any matter relating to this Note, or any other Transaction
Document, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in New York County, and
the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties
hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit,
claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by
applicable law, in such federal court. The Company and the Holder agree that a final judgment in any such suit, claim, action, litigation
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law.
(iv)
The Company and the Holder irrevocably consent to the service of process out of any of the aforementioned courts in any such suit,
claim, action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid, to it at the
address provided for notices in this Note, such service to become effective thirty (30) days after the date of mailing.
(v)
Nothing herein shall affect the right of the Holder to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.
(c)
THE
PARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND ARISING OUT OF OR BASED UPON THIS NOTE OR ANY MATTER RELATING
TO THIS NOTE, OR ANY OTHER TRANSACTION DOCUMENT, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES ACKNOWLEDGE THAT THIS IS A WAIVER OF A
LEGAL RIGHT AND THAT THE PARTIES EACH MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL OF THEIR RESPECTIVE
CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION, WITHOUT A JURY.
(9)
If the Company fails to strictly comply with the terms of this Note, then the Company shall reimburse the Holder promptly for all
fees, costs and expenses, including, without limitation, attorneys’ fees and expenses incurred by the Holder in any action in connection
with this Note, including, without limitation, those incurred: (i) during any workout, attempted workout, and/or in connection with the
rendering of legal advice as to the Holder’s rights, remedies and obligations, (ii) collecting any sums which become due to the
Holder, (iii) defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation
or enforcement of any rights or remedies of the Holder.
(10)
Any waiver by the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this Note. The failure of the Holder to insist upon strict adherence
to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Note. Any waiver must be in writing.
(11)
If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances.
If it shall be found that any interest or other amount deemed interest due hereunder shall violate applicable laws governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the Principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this indenture, and the Company (to the extent it may lawfully do so)
hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder,
delay or impeded the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though
no such law has been enacted.
(12)
CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a)
“Amortization Event” shall mean (i) the daily VWAP is less than the Floor Price then in effect for five Trading
Days during a period of seven consecutive Trading Days (a “Floor Price Event”), or (ii) the Company has issued to the
Investor, pursuant to the transactions contemplated in this Note and the SEPA, in excess of 99% of the Common Shares available under the
Exchange Cap, where applicable (an “Exchange Cap Event”), (the last day of each such occurrence, an “Amortization
Event Date”)
(b)
"Bloomberg" means Bloomberg Financial Markets.
(c)
“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the
United States or a day on which banking institutions are authorized or required by law or other government action to close.
(d)
"Buy-In" shall have the meaning set forth in Section (3)(b)(ii).
(e)
“Buy-In Price” shall have the meaning set forth in Section (3)(b)(ii).
(f)
“Calendar Month” means one of the months as named in the calendar.
(g)
“Change of Control Transaction” means the occurrence of (a) an acquisition after the date hereof by an individual
or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of fifty percent (50%) of
the voting power of the Company (except that the acquisition of voting securities by the Holder or any other current holder of convertible
securities of the Company shall not constitute a Change of Control Transaction for purposes hereof), (b) a replacement at one time or
over time of more than one-half of the members of the board of directors of the Company (other than as due to the death or disability
of a member of the board of directors) which is not approved by a majority of those individuals who are members of the board of directors
on the date hereof (or by those individuals who are serving as members of the board of directors on any date whose nomination to the board
of directors was approved by a majority of the members of the board of directors who are members on the date hereof), (c) the merger,
consolidation or sale of fifty percent (50%) or more of the assets of the Company or any Subsidiary of the Company in one or a series
of related transactions with or into another entity, or (d) the execution by the Company of an agreement to which the Company is a party
or by which it is bound, providing for any of the events set forth above in (a), (b) or (c). No transfer to a wholly-owned Subsidiary
shall be deemed a Change of Control Transaction under this provision.
(h)
“Closing Price” means the price per share in the last reported trade of the Common Shares on a Primary Market
or on the exchange which the Common Shares are then listed as quoted by Bloomberg.
(i)
“Commission” means the Securities and Exchange Commission.
(j)
“Common Shares” means the shares of common stock, par value $0.0001, of the Company and stock of any other class
into which such shares may hereafter be changed or reclassified.
(k)
“Conversion Amount” s means the portion of the Principal, Interest, or other amounts outstanding under this
Note to be converted, redeemed or otherwise with respect to which this determination is being made.
(l)
"Conversion Date" shall have the meaning set forth in Section (3)(b)(i).
(m)
"Conversion Failure" shall have the meaning set forth in Section (3)(b)(ii).
(n)
"Conversion Notice" shall have the meaning set forth in Section (3)(b)(i).
(o)
"Conversion Price" means, as of any Conversion Date or other date of determination the lower of (i) $1.00 per
Common Share (the “Fixed Price”), or (ii) 95% of the lowest daily VWAP during the 5 consecutive Trading Days immediately
preceding the Conversion Date or other date of determination (the “Variable Price”), but which Variable Price shall
not be lower than the Floor Price then in effect. The Conversion Price shall be adjusted from time to time pursuant to the other terms
and conditions of this Note.
(p)
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
(q)
“Floor Price” solely with respect to the Variable Price, shall mean $0.04 per share. Notwithstanding the foregoing,
the Company may reduce the Floor Price to any amounts set forth in a written notice to the Holder; provided that such reduction shall
be irrevocable and shall not be subject to increase thereafter.
(r)
“Fundamental Transaction” means any of the following: (1) the Company effects any merger or consolidation
of the Company with or into another Person and the Company is the non-surviving company (other than a merger or consolidation with a wholly
owned Subsidiary of the Company for the purpose of redomiciling the Company), (2) the Company effects any sale of all or substantially
all of its assets in one or a series of related transactions, (3) any tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Shares are permitted to tender or exchange their shares for other securities,
cash or property, or (4) the Company effects any reclassification of the Common Shares or any compulsory share exchange pursuant to which
the Common Shares is effectively converted into or exchanged for other securities, cash or property.
(s)
“Other Notes” means any other notes debentures, or other instruments issued in exchange, replacement, or modification
of this Note.
(t)
“Periodic Reports” shall mean the Company’s (i) Annual Report on Form 10-K for the fiscal year ending
December 31, 2023, (ii) any current report to be filed on Form 10-Q and (iii) all other reports required to be filed by the Company with
the Commission under applicable laws and regulations (including, without limitation, Regulation S-K) for so long as any amounts are outstanding
under this Note or any Other Note; provided that all such Periodic Reports shall include, when filed, all information, financial
statements, audit reports (when applicable) and other information required to be included in such Periodic Reports in compliance with
all applicable laws and regulations.
(u)
“Person” means a corporation, an association, a partnership, organization, a business, an individual, a government
or political subdivision thereof or a governmental agency.
(v)
“Primary Market” means any of The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the
Nasdaq Global Market or the Nasdaq Global Select Market, and any successor to any of the foregoing markets or exchanges.
(w)
“Registration Failure” means the Company’s failure to file the initial Registration Statement by the Filing
Deadline as set forth in the Registration Rights Agreement.
(x)
“Registration Rights Agreement” means the registration rights agreement entered into between the Company and
the Holder on the date hereof.
(y)
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration
Rights Agreement, covering among other things the resale of the Underlying Shares and naming the Holder as a “selling stockholder”
thereunder.
(z)
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(aa)
"Share Delivery Date" shall have the meaning set forth in Section (3)(b)(i).
(bb)
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries
of such Person; or (iii) one or more Subsidiaries of such Person.
(cc)
“Trading Day” means a day on which the Common Shares are quoted or traded on a Primary Market on which the Common
Shares are then quoted or listed; provided, that in the event that the Common Shares are not listed or quoted, then Trading Day shall
mean a Business Day.
(dd)
“Transaction Document” means, each of, this Note, any Other Notes, the SEPA, the Registration Rights Agreement
and any and all documents, agreements, instruments or other items executed or delivered in connection with any of the foregoing.
(ee)
“Underlying Shares” means the Common Shares issuable upon conversion of this Note or as payment of interest
in accordance with the terms hereof.
(ff)
"VWAP" means, for any security as of any date, the daily dollar volume-weighted average price for such security
on the Primary Market during regular trading hours as reported by Bloomberg through its “Historical Prices – Px Table with
Average Daily Volume” functions.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has caused this Convertible Promissory Note to be duly executed by a duly authorized officer as of the date set forth above.
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COMPANY: |
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COEPTIS THERAPEUTICS HOLDINGS, INC. |
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By:
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Name: David Mehalick |
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Title: President and CEO |
EXHIBIT I
CONVERSION NOTICE
(To be executed by the Holder in order to
Convert the Note)
TO: COEPTIS THEREPEUTICS HOLDINGS, INC.
Via Email:
The undersigned hereby irrevocably
elects to convert a portion of the outstanding and unpaid Conversion Amount of Note No. COEP-1 into Common Shares of COEPTIS
THERAPEUTICS HOLDINGS, INC., according to the conditions stated therein, as of the Conversion Date written below.
Conversion Date: |
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Principal Amount to be Converted: |
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Accrued Interest to be Converted: |
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Total Conversion Amount to be converted: |
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Fixed Price: |
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Variable Price: |
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Conversion Price: |
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Number of Common Shares to be issued: |
Please issue
the Common Shares in the following name and deliver them to the following account:
Issue to: |
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Broker DTC Participant Code: |
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Account Number: |
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Authorized Signature: |
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Name: |
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Title: |
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Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) dated as of November 1, 2024 is made by and between YA II PN, LTD., a Cayman Islands
exempt limited partnership (the “Investor”), and COEPTIS THERAPEUTICS HOLDINGS, INC., a company incorporated under
the laws of the State of Delaware (the “Company”). The Investor and the Company may be referred to herein individually
as a “Party” and collectively as the “Parties.”
WHEREAS, the Company
and the Investor have entered into that certain Standby Equity Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”), pursuant to which the Company may issue, from time to time, to the Investor up to $20 million of newly issued shares
of the Company’s shares of Common Stock, par value $0.0001 per share (the “Common Shares”); and
WHEREAS, pursuant to
the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor to execute and deliver
the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”).
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Investors hereby agree as follows:
1.
DEFINITIONS.
Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
(a)
“Effectiveness Deadline” means, with respect to the initial Registration Statement filed hereunder, the 90th
calendar day following the date hereof, provided, however, in the event the Company is notified by the U.S. Securities and Exchange Commission
(“SEC”) that the Registration Statement will not be reviewed or is no longer subject to further review and comments,
the Effectiveness Deadline as to such Registration Statement shall be the fifth business day following the date on which the Company is
so notified if such date precedes the date required above. Notwithstanding the foregoing, in the event the Registration Statement is subject
to a full SEC review, or the Company is required to update the financial statements therein, which causes the Registration Statement not
to be declared effective by the Effectiveness Deadline, the Effectiveness Deadline shall automatically be deemed to be extended for so
long as necessary provided that the Company is using its best efforts to promptly respond and satisfy the requests of the SEC, and during
such period, the Company shall not be deemed to be in default of satisfying the Effectiveness Deadline.
(b)
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
(c)
“Filing Deadline” means, with respect to the initial Registration Statement required hereunder, the 30th calendar
day following date hereof.
(d)
“Person” means a corporation, a limited liability company, an association, a partnership, an organization, a
business, an individual, a governmental or political subdivision thereof or a governmental agency.
(e)
“Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
(f)
“Registrable Securities” means all of (i) the Shares (as defined in the Purchase Agreement) and the Commitment
Shares (as defined in the Purchase Agreement), (ii) any capital stock issued or issuable with respect to the Shares and Commitment Shares,
including, without limitation, (1) as a result of any stock split, stock dividend or other distribution, recapitalization or similar event
or otherwise, and (2) shares of capital stock of the Company into which the Common Shares are converted or exchanged and shares of capital
stock of a successor entity into which the Common Shares are converted or exchanged.
(g)
“Registration Statement” means any registration statement of the Company, including the Prospectus, amendments
and supplements to such registration statement or Prospectus, including post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such registration statement.
(h)
“Rule 144” means Rule 144 under the Securities Act or any successor rule thereto.
(i)
“Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as
such Rule.
(j)
“SEC” means the Securities and Exchange Commission or any other federal agency administering the Securities
Act and the Exchange Act at the time.
(k)
“Securities Act” shall have the meaning set forth in the Recitals above.
2.
REGISTRATION.
(a)
The Company’s registration obligations set forth in this Section 2 including its obligations to file Registration Statements,
obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of any Registration Statement that has been
declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all
of the Registrable Securities, (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds
no Registrable Securities, and (iii) the date on which all of the Registrable Securities have been sold or may permanently sold without
any restriction pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent (the “Registration Period”).
(b)
Subject to the terms and conditions of this Agreement, the Company shall (i) as soon as practicable, but in no case later than
the Filing Deadline, prepare and file with the SEC an initial Registration Statement on Form S-3 (or, if the Company is not then eligible,
on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall
be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale
of such Registrable Securities by the Investor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration
Statement shall contain “Selling Stockholders” and “Plan of Distribution” sections. The Company
shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later
than the Effectiveness Deadline. By 9:30 am on the business day following the date of effectiveness, the Company shall file with the SEC
in accordance with Rule 424 under the 1933 Act the final Prospectus to be used in connection with sales pursuant to such Registration
Statement. Prior to the filing of the Registration Statement with the SEC, the Company shall furnish a draft of the Registration Statement
to the Investor for their review and comment. The Investor shall furnish comments on the Registration Statement to the Company within
24 hours of the receipt thereof from the Company.
(c)
Sufficient Number of Shares Registered. If at any time all Registrable Securities are not covered by a Registration Statement
filed pursuant to Section 2(a) as a result of Section 2(e) or otherwise, the Company shall use its commercially reasonable efforts to
file with the SEC one or more additional Registration Statements so as to cover all of the Registrable Securities not covered by such
initial Registration Statement, in each case as soon as practicable (taking into account any position of the staff of the SEC with respect
to the date on which the Staff will permit such additional Registration Statement(s) to be filed with the SEC and the rules and regulations
of the SEC). The Company shall use its commercially reasonable efforts to cause each such new Registration Statement to become effective
as soon as reasonably practicable following the filling thereof with the SEC.
(d)
During the Registration Period, the Company shall (i) promptly prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the Prospectus used in connection with a Registration Statement, which Prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective
at all times during the Registration Period, (ii) prepare and file with the SEC additional Registration Statements in order to register
for resale under the Securities Act all of the Registrable Securities; (iii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant
to Rule 424; (iv) respond as promptly as reasonably possible to any comments received from the SEC with respect to a Registration Statement
or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from
and to the SEC relating to a Registration Statement (provided that the Company may excise any information contained therein which would
constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company); and
(v) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered
by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments
and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section
2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Exchange
Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments
or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to
amend or supplement the Registration Statement.
(e)
Reduction of Registrable Securities Included in a Registration Statement. Notwithstanding anything contained herein, in
the event that the SEC requires the Company to reduce the number of Registrable Securities to be included in a Registration Statement
in order to allow the Company to rely on Rule 415 with respect to a Registration Statement, then the Company shall reduce the number of
Registrable Securities to be included in such Registration Statement (after consultation with the Investor as to the specific Registrable
Securities to be removed therefrom) to the maximum number of securities as is permitted to be registered by the SEC. In the event of any
reduction in Registrable Securities pursuant to this paragraph, the Company shall use its commercially reasonable efforts to file one
or more New Registration Statements with the Commission in accordance with Section 2(c) until such time as all Registrable Securities
have been included in Registration Statements that have been declared effective and the Prospectuses contained therein are available for
use by the Investor.
(f)
Failure to File or Obtain Effectiveness of the Registration Statement or Remain Current. If: (i) a Registration Statement
is not filed on or prior to its Filing Date, or (ii) a Registration Statement is not declared effective on or prior to the Effectiveness
Deadline, or the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 promulgated under the Securities
Act, within five business days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that a
Registration Statement will not be “reviewed,” or not subject to further review, or (iii) after the effectiveness, a Registration
Statement ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective,
or (iv) the Investor is not permitted to utilize the Prospectus therein to resell such Registrable Securities for more than 30 consecutive
calendar days or more than an aggregate of 60 calendar days during any 12-month period (which need not be consecutive calendar days),
or (v) if after the date that is six months from the date hereof, the Company does not have available adequate current public information
as set forth in Rule 144(c) (any such failure or breach being referred to as an “Event”), then in addition to any other
rights the Investor may have hereunder or under applicable law, the Company shall be in breach of the term and conditions of this Agreement
and such Event shall be deemed an event of default for so long as such Event remains uncured. During the period of the existence of an
uncured Event, the Investor shall have no obligation to accept an Adcance Notice or accept or purchase any Advance Shares (other than
any Advance Shares purchased by the Investor prior to the occurrence of the Event).
(g)
Piggy-Back Registrations. If at any time there is not an effective Registration Statement covering all of the Registrable
Securities and the Company proposes to register the offer and sale of any Common Shares under the Securities Act (other than a registration
(i) pursuant to a Registration Statement on Form S-8 ((or other registration solely relating to an offering or sale to employees or directors
of the Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a Registration Statement on
Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), or
(iii) in connection with any dividend or distribution reinvestment or similar plan), whether for its own account or for the account of
one or more stockholders of the Company and the form of Registration Statement to be used may be used for any registration of Registrable
Securities, the Company shall give prompt written notice (in any event no later than five days prior to the filing of such Registration
Statement) to the holders of Registrable Securities of its intention to effect such a registration and, shall include in such registration
all Registrable Securities with respect to which the Company has received written requests for inclusion from the holders of Registrable
Securities; provided, however, that, the Company shall not be required to register any Registrable Securities pursuant to
this Section 10(c) that have been sold or may permanently be sold without any restrictions pursuant to Rule 144, as determined by the
counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent.
(h)
No Inclusion of Other Securities. In no event shall the Company include any securities other than Registrable Securities
on any Registration Statement pursuant to Section 2(a) or Section 2(c) without consulting with the Investor prior to filing such Registration
Statement with the SEC.
3.
RELATED OBLIGATIONS.
(a)
The Company shall, not less than three business days prior to the filing of each Registration Statement and not less than one business
day prior to the filing of any related amendments and supplements to all Registration Statements (except for annual reports on Form 10-K,
supplements and amendments to update the Registration Statement solely for information reflected in the Company’s annual reports
on Form 10-K, quarterly reports on Form 10-Q or current reports on Form 8-K), furnish to each Investor copies of all such documents proposed
to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable
and prompt review of such Investor, The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Investor shall reasonably object in good faith; provided that, the Company is notified of such objection in
writing within 24 hours after the Investors have been so furnished copies of a Registration Statement.
(b)
The Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge
(i) at least one copy (which may be in electronic form) of such Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary
prospectus, (ii) at least one copy (which may be in electronic form) of the final prospectus included in such Registration Statement and
all amendments and supplements thereto, and (iii) any documents, which are not publicly available through EDGAR, as such Investor may
reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(c)
The Company shall use its commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as any Investor reasonably
requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (w) make any change to
its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(c), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for
sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
(d)
As promptly as practicable after becoming aware of such event or development, the Company shall notify each Investor in writing
of the happening of any event as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an
untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain
any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue
statement or omission and deliver one electronic copy of such supplement or amendment to the Investor. The Company shall also promptly
notify each Investor in writing (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and when
a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to
each Investor by email on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration
Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate. The Company shall respond as promptly as reasonably practicable to any comments
received from the SEC with respect to a Registration Statement or any amendment thereto.
(e)
The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction
within the United States of America and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension
at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold of the issuance of such order
and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f)
Without limiting any obligation of the Company under the Purchase Agreement, the Company shall use commercially reasonable efforts
either to cause all of the Registrable Securities covered by each Registration Statement to be listed on the Principal Market. The Company
shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(f).
(g)
The Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company
unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement.
The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court
or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor,
at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(h)
The Company shall cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive
legends and representing such number of Common Shares and registered in such names as the holders of the Registrable Securities may reasonably
request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule; provided,
that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust
Company's Direct Registration System.
(i)
The Company shall use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved
by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(j)
The Company shall otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the
SEC in connection with any registration hereunder.
(k)
Within two business days after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the
Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities
(with copies to the Investor whose Registrable Securities are included in such Registration Statement) confirmation that such Registration
Statement has been declared effective by the SEC.
(l)
The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investor of Registrable
Securities pursuant to a Registration Statement.
4.
OBLIGATIONS OF THE INVESTOR.
(a)
The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section
3(d) such Investor shall as soon as reasonably practicable discontinue disposition of Registrable Securities pursuant to any Registration
Statement covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(d) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary,
subject to compliance with the securities laws, the Company shall cause its transfer agent to deliver unlegended certificates for Common
Shares to a transferee of an Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable
Securities with respect to which an Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from
the Company of the happening of any event of the kind described in Section 3(d) and for which the Investor has not yet settled.
(b)
The Investor covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable
to it or an exemption therefrom in connection with sales of Registrable Securities pursuant to the Registration Statement.
(c)
The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of each Registration Statement hereunder, unless the Investor has notified the
Company in writing of the Investor’s election to exclude all of the Investor’s Registrable Securities from such Registration
Statement.
5.
EXPENSES OF REGISTRATION.
All expenses incurred by the
Company in complying with its obligations pursuant to this Agreement and in connection with the registration and disposition of Registrable
Securities shall be paid by the Company, including, without limitation, all registration, listing and qualifications fees, printers, fees
and expenses of the Company's counsel and accountants (except legal fees of Investor’s counsel associated with the review of the
Registration Statement).
6.
INDEMNIFICATION.
With respect to Registrable
Securities which are included in a Registration Statement under this Agreement:
(a)
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, the
directors, officers, partners, employees, agents, representatives of, and each Person, if any, who controls any Investor within the meaning
of the Securities Act or the Exchange Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses, joint or several
(collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body
or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”),
to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement
or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities
or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any final prospectus (as amended
or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to
state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements
therein were made, not misleading; or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act,
any other law, including, without limitation, any state securities law, or any rule or regulation there under relating to the offer or
sale of the Registrable Securities pursuant to a Registration Statement (the matters in the foregoing clauses (i) through (iii) being,
collectively, “Violations”). The Company shall reimburse the Investors and each such controlling person promptly as
such expenses are incurred and are due and payable, for any legal fees or disbursements that are reasonably incurred by them or other
reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(a): (x) shall not apply to a Claim by an Indemnified Person
arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto; (y) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or
to cause to be delivered the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant
to Section 3(c); and (z) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person.
(b)
In connection with a Registration Statement, the Investor agrees to indemnify, hold harmless and defend, to the same extent and
in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers, employees, representatives,
or agents and each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each an “Indemnified
Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or is based upon any Violation, in each case to the extent,
and only to the extent, that such Violation occurs (i) in reliance upon and in conformity with written information furnished to the Company
by such Investor expressly for use in connection with such Registration Statement or (ii) from the Investor’s violation of any prospecuts
delivery requirements under the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law,
or any rule or regulation there under relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement;
and, subject to Section 6(d), such Investor will reimburse any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Claim; provided, however, that the indemnity agreement contained in this Section 6(b) and the
agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld, conditioned or delayed;
provided, further, however, that, absent fraud or gross negligence, the Investor shall be liable under this Section 6(b) for only that
amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by
or on behalf of such Indemnified Party. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained
in this Section 6(b) with respect to any prospectus shall not inure to the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the prospectus was corrected and such new prospectus was delivered to each Investor prior to such
Investor’s use of the prospectus to which the Claim relates.
(c)
Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any
action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with
counsel reasonably mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may
be; provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and
expenses of not more than one (1) counsel for such Indemnified Person or Indemnified Party to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified
Person or Indemnified Party and any other party represented by such counsel in such proceeding. The Indemnified Party or Indemnified Person
shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying
party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person
which relates to such action or claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at
all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for
any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent
of the Indemnified Party or Indemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry
of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such claim or
litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified
Party or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to defend such action.
(d)
The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages are incurred.
(e)
The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified
Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to
pursuant to the law.
7.
CONTRIBUTION.
To the extent any indemnification
by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of fraudulent misrepresentation; and
(ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8.
REPORTS UNDER THE EXCHANGE ACT.
With a view to making available
to the Investor the benefits of Rule 144 promulgated under the Securities Act or any similar rule or regulation of the SEC that may at
any time permit the Investors to sell securities of the Company to the public without registration, and as a material inducement to the
Investor’s purchase of the Promissory Notes, the Company represents, warrants, and covenants to the following:
(a)
The Company is subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and has filed all required reports
under section 13 or 15(d) of the Exchange Act during the 12 months prior to the date hereof (or for such shorter period that the issuer
was required to file such reports), other than Form 8-K reports.
(b)
During the Registration Period, the Company shall file with the SEC in a timely manner all required reports under section 13 or
15(d) of the Exchange Act (it being understood that the filings prior to any permitted filing deadline extension under Rule 12b-25 unde
the Exchange Act shall be deemd timely and it being further understood that nothing herein shall limit the Company’s obligations
under the Purchase Agreement) and such reports shall conform to the requirement of the Exchange Act and the SEC for filing thereunder.
(c)
The Company shall furnish to the Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably
requested to permit the Investor to sell such securities pursuant to Rule 144 without registration.
9.
AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement
may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of the Company and the Investor. Any amendment or waiver effected in accordance with this Section 9
shall be binding upon each of the Investor and the Company. No such amendment shall be effective to the extent that it applies to fewer
than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any Person to amend or consent to
a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the parties
to this Agreement.
10.
MISCELLANEOUS.
(a)
A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable
Securities or owns the right to receive the Registrable Securities. If the Company receives conflicting instructions, notices or elections
from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice
or election received from the registered owner of such Registrable Securities.
(b)
No Other Registrations. The Company shall not include any other securities on a Registration Statement which includes Registrable
Securities unless otherwise agreed by the Investor.
(c)
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered pursuant to the notice provisions of the Purchase Agreement or to such other address
and/or electronic mail address and/or to the attention of such other person as the recipient party has specified by written notice given
to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) electronically generated by the sender’s email service provider containing
the time, date, and recipient email or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with this section.
(d)
Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
(e)
The laws of the State of New York shall govern all issues concerning the relative rights of the Company and the Investor as its
stockholder. All other questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of New York. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the Supreme Court of the State of New York, sitting
in New York County, New York and federal courts for the Southern District of New York sitting New York, New York, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f)
This Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties hereto.
(g)
The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h)
This Agreement may be executed in identical counterparts, both of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically
scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail attachment,
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
(i)
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j)
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and
no rules of strict construction will be applied against any party.
(k)
This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the Investor and the Company have caused their signature page to this Registration Rights Agreement to be duly executed as of the date
first above written.
|
COMPANY: |
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COEPTIS THERAPEUTICS HOLDINGS, INC. |
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|
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By: |
|
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Name: |
David Mehalick |
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Title: |
President and CEO |
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INVESTOR: |
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YA II PN, Ltd. |
|
|
|
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By: |
Yorkville Advisors Global, LP |
|
Its: |
Investment Manager |
|
By: |
Yorkville
Advisors Global II, LLC |
|
Its: |
General Partner |
|
|
|
|
By: |
|
|
Name: |
Matt Beckman |
|
Title: |
Member |
v3.24.3
Cover
|
Nov. 01, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Nov. 01, 2024
|
Entity File Number |
001-39669
|
Entity Registrant Name |
COEPTIS THERAPEUTICS HOLDINGS, INC.
|
Entity Central Index Key |
0001759186
|
Entity Tax Identification Number |
98-1465952
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
105 Bradford Rd
|
Entity Address, Address Line Two |
Suite 420
|
Entity Address, City or Town |
Wexford
|
Entity Address, State or Province |
PA
|
Entity Address, Postal Zip Code |
15090
|
City Area Code |
724
|
Local Phone Number |
934-6467
|
Written Communications |
false
|
Soliciting Material |
false
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Pre-commencement Tender Offer |
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|
Pre-commencement Issuer Tender Offer |
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|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Common Stock [Member] |
|
Title of 12(b) Security |
Common Stock, par value $0.0001 per share
|
Trading Symbol |
COEP
|
Security Exchange Name |
NASDAQ
|
Warrant [Member] |
|
Title of 12(b) Security |
Warrants,
each whole warrant exercisable for one-half of one share of Common Stock for $11.50 per whole share
|
Trading Symbol |
COEPW
|
Security Exchange Name |
NASDAQ
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