Exchange Agreement, dated October 17, 2023, by and between NeuBase Therapeutics, Inc. and the Warrant Holder thereto

Exhibit 10.1

exchange Agreement

This Exchange Agreement (this “Agreement”) is dated as of October 17, 2023, by and between NeuBase Therapeutics, Inc. or any Successor Entity thereto (together, the “Company”) and Armistice Capital Master Fund Ltd. (the “Warrant Holder”). Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Securities Purchase Agreements (as defined below) and the New Warrant (as defined below).

Recitals

Whereas, on June 30, 2023, pursuant to a Securities Purchase Agreement, dated June 28, 2023, by and between the Company and the Warrant Holder (the “PIPE SPA”), the Company, among other things, issued to the Warrant Holder in a private placement: (i) a Series A Common Stock Purchase Warrant to purchase 1,366,829 shares of Common Stock (the “PIPE Series A Warrant”), and (ii) a Series B Common Stock Purchase Warrant to purchase 1,366,829 shares of Common Stock (the “PIPE Series B Warrant”);

Whereas, on June 30, 2023, pursuant to a Securities Purchase Agreement, dated June 28, 2023, by and between the Company and the Warrant Holder (the “RD SPA” and, together with the PIPE SPA, the “Securities Purchase Agreements”), the Company, among other things, issued to the Warrant Holder in a private placement conducted concurrently with a registered direct offering: (i) a Series A Common Stock Purchase Warrant to purchase 578,697 shares of Common Stock (the “RD Series A Warrant” and, together with the PIPE Series A Warrant, the “Series A Warrants”), and (ii) a Series B Common Stock Purchase Warrant to purchase 578,697 shares of Common Stock (the “RD Series B Warrant” and, together with the PIPE Series B Warrant, the “Series B Warrants” and the Series B Warrants, together with the Series A Warrants, the “Warrants”); and

Whereas, the Company and the Warrant Holder desire to enter into this agreement relating to the treatment of the Series A Warrants upon the execution of a Definitive Agreement (as defined below) and the treatment of the Series B Warrants upon execution of this Agreement.

Agreement

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.            Execution of Definitive Agreement. In the event the Company executes a definitive agreement (the “Definitive Agreement”) pursuant to which (i) the Company, directly or indirectly, in one or more related transactions agrees to effect any merger or consolidation of the Company with or into another Person (excluding a merger effected solely to change the Company’s name or domiciliation), (ii) the Company (or any Subsidiary), directly or indirectly, agrees to effect any sale, lease, exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions, (iii) any direct or indirect purchase offer, tender offer or exchange offer (whether by the Company or another Person) will be effected pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock or more than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions agrees to consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock or more than 50% of the voting power of the common equity of the Company, in each of cases (i) through (v), other than a combination (including by way of a reverse stock split) of the Company’s outstanding shares of capital stock into a smaller number of shares, the Company shall notify the Warrant Holder of such Definitive Agreement in writing (the “Notice”) on the date such Definitive Agreement is executed by the Company (the “Execution Date”). Within one (1) Business Day of the Warrant Holder’s receipt of the Notice, the Warrant Holder shall provide to the Company a written certification, in the form attached hereto as Exhibit A, certifying as to the number of shares of Common Stock issuable upon exercise of the Series A Warrants held by the Warrant Holder as of the Execution Date (the “Certification”). For purposes of clarification, whether or not the Company provides a Notice pursuant to this Section 1, effective as of the Execution Date, the Warrant Holder shall be entitled to receive the consideration as further detailed in this Agreement.

2.            Exchange of Series A Warrants. Effective as of the Execution Date, the Company shall, in reliance upon the exemption from securities registration afforded Section 3(a)(9) of the Securities Act, exchange the Series A Warrants then-held by the Warrant Holder for a new Series A-1 Common Stock Purchase Warrant, in substantially the form attached hereto as Exhibit B (the “New Warrant”), to purchase such number of shares of Common Stock as is equal to the product of 110% multiplied by the aggregate number of shares of Common Stock that are then-exercisable pursuant to the Series A Warrants held by the Warrant Holder (if any), as indicated in the Certification (rounded up to the nearest whole share). Within two (2) Trading Days following the date the Warrant Holder delivers the Certification, the Company shall deliver the original New Warrant to the Warrant Holder to the address designated by the Warrant Holder to the Company in writing, and the Warrant Holder shall deliver its original Series A Warrants to the Company for cancellation as soon as practicable. For avoidance of doubt, if the Series A Warrants are no longer outstanding or there are otherwise no shares exercisable under the Series A Warrants as of the date of entry into the Definitive Agreement, then no New Warrant shall be issued pursuant to this Section 2.

3.            Repurchase of Series B Warrants. No later than two Business Days following the date hereof, the Company shall pay to the Warrant Holder a cash payment by wire transfer of immediately available funds to the account designated by the Warrant Holder to the Company in writing equal to $1,250,000.00 (the “Series B Warrant Payment Amount”), in consideration for the Company’s repurchase of the Series B Warrants in full, and the Warrant Holder shall surrender its original Series B Warrants to the Company for cancellation as soon as practicable.

4.            Non-Transferability of Warrants. Notwithstanding anything to the contrary contained in Section 4 of the Warrants, from and after the date of this Agreement, the Warrant Holder hereby agrees that it shall not, directly or indirectly, offer, sell, contract to sell (including any short sale), pledge, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, grant any option, right or warrant for the sale of, purchase any option or contract to sell, sell any option, right, warrant or contract to purchase, lend, or otherwise encumber, dispose of or transfer, or grant any rights with respect to, any of the Warrants. For avoidance of doubt, nothing in this Section 4 shall be construed as a limitation on the Warrant Holder’s ability to exercise any of the Warrants, and the Warrant Holder shall continue to have all rights to exercise any of the Warrants in accordance with the terms thereof.

5.            The Company’s Representations and Warranties. The Company hereby represents and warrants to the Warrant Holder as follows:

(a)            Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (if a good standing concept exists in such jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing (if a good standing concept exists in such jurisdiction) as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing (if a good standing concept exists in such jurisdiction), as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the 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 (any of (i), (ii) or (iii), a “Material Adverse Effect”)  and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

(b)            Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith other than in connection with the Required Approvals (as defined below). This Agreement has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will (assuming due authorization, execution and delivery by other parties thereto) constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(c)            Issuance of the Securities. The New Warrant and the shares of Common Stock issuable upon exercise thereof (such shares of Common Stock, the “Warrant Shares” and, together with the New Warrant, the “Securities”) are duly authorized and, when issued and paid for in accordance with this Agreement and, in the case of the Warrant Shares, the New Warrant, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in this Agreement and the New Warrant. The Warrant Shares, when issued and paid for in accordance with the terms of the New Warrant, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in this Agreement and the New Warrant. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the New Warrant.

(d)            No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to accept the surrender of the Series B Warrants in exchange for the Series B Warrant Payment Amount, do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.

(e)            Section 3(a)(9) Exchange. The Company acknowledges that the issuance of the New Warrant in exchange for the Series A Warrants is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities Act. The Company has not taken any action that would cause such exemption not to be available.

(f)            SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, the “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained 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. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.

(g)            Trading Market. The issuance and sale of the New Warrant and the New Warrant Shares hereunder does not contravene the applicable rules and regulations of the Nasdaq Capital Market.

(h)            Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of this Agreement, other than: (i) the filings required pursuant to this Agreement; (ii) the application(s) or notice to each applicable Trading Market for the listing of the New Warrant and New Warrant Shares for trading thereon in the time and manner required thereby, and (iii) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws.

(i)            Form D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrant and New Warrant Shares as required under Regulation D and to provide a copy thereof, promptly upon request of the Warrant Holder. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrant and the New Warrant Shares for, sale to the Warrant Holder on the Execution Date under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of the Warrant Holder.

6.            The Warrant Holder’s Representations and Warranties. The Warrant Holder hereby represents and warrants to the Company as follows:

(a)            Ownership of the Warrants. The Warrant Holder holds and is the sole owner, beneficially and of record, of the Warrants. The Warrants are held free and clear of all mortgages, liens, licenses, pledges, charges, claims, equities, commitments, security interests, prior assignments encumbrances, agreements, rights of first refusal, options or restrictions of any kind whatsoever (including, without limitation, restrictions on the right to sell or otherwise dispose of the Warrants) or other defects in title.

(b)             Organization; Authority. The Warrant Holder is an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated hereby and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement and performance by the Warrant Holder of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of the Warrant Holder. This Agreement has been duly executed by the Warrant Holder, and when delivered by the Warrant Holder in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Warrant Holder, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(c)            Understandings or Arrangements. The Warrant Holder is entering into this Agreement, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount, as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of the Securities (this representation and warranty not limiting the Warrant Holder’s right to sell any such shares of Common Stock in compliance with applicable federal and state securities laws). The Warrant Holder understands that the Securities are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling the Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of the Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of the Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Warrant Holder’s right to sell the Securities in compliance with applicable federal and state securities laws). The Warrant Holder is entering into this Agreement, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount, in the ordinary course of its business.

(d)            The Warrant Holder’s Status. As of the date hereof, the Warrant Holder is, and on the Execution Date and each date on which it exercises the New Warrant, it will be, either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

(e)            Experience of the Warrant Holder. The Warrant Holder, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of entering into this Agreement, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount, and has so evaluated the merits and risks of such investment. The Warrant Holder is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

(f)            Access to Information. The Warrant Holder acknowledges that it has had the opportunity to review this Agreement (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning this Agreement, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount, and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.

(g)            General Solicitation. The Warrant Holder is not entering into this Agreement, including the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount, as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Warrant Holder, any other general solicitation or general advertisement.

(h)            Section 3(a)(9) Exchange. The Warrant Holder acknowledges that the issuance of the New Warrant in exchange for the Series A Warrants is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities Act. The Warrant Holder has not taken any action that would cause such exemption not to be available.

7.            Registration Statement. As soon as practicable (and in any event by the later of 120 calendar days following the Execution Date and May 1, 2024), the Company shall file a registration statement on Form S-1 (or other appropriate form if the Company is not then S-1 eligible) (the “Registration Statement”) providing for the resale by the Warrant Holder of the Warrant Shares issued and issuable upon exercise of the New Warrant.  The Company shall use commercially reasonable efforts to cause the Registration Statement to become effective upon the earlier of 90 days following the date of the filing of the Registration Statement and five trading days after the date the Company receives written notification from the Commission that the Registration Statement will not be reviewed and to keep the Registration Statement effective at all times until no Warrant Holder owns any New Warrants or Warrant Shares issuable upon exercise thereof.

8.            General Provisions.

(a)            Entire Agreement. This Agreement, together with the exhibits hereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into this Agreement and such exhibits.

(b)            Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery (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) or other transmission method, such signature shall be deemed to have been duly and validly delivered and shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page were an original there.

(c)            Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan 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 improper or is an inconvenient venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for 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 other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Agreement, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

(d)            Notices. Any and all notices or other communications or deliveries to be provided by the Warrant Holder hereunder, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at 350 Technology Drive, Pittsburgh, PA 15219, Attention: Todd Branning, email address: ***@***, or such other email address or address as the Company may specify for such purposes by notice to the Warrant Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 8(d) prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 8(d) on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.

(e)            Successors and Assigns. Subject to applicable securities laws, this Agreement and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of the Warrant Holder.

(f)            Amendment. This Agreement may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Warrant Holder, on the other hand.

(g)            Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

(h)            Headings. The headings used in this Agreement are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement.

[Signature Page Follows]

In Witness Whereof, the parties hereto have executed this Agreement on the date first written above.

Exhibit A

Certification

Reference is hereby made to that certain Exchange Agreement, dated October 17, 2023 (the “Agreement”), by and between NeuBase Therapeutics, Inc. and Armistice Capital Master Fund Ltd. (the “Warrant Holder”). Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Agreement. In accordance with Section 1 of the Agreement, the Warrant Holder hereby represents and warrants to the Company that, as of the date hereof, the Warrant Holder holds and is the sole owner, beneficially and of record, of the following Series A Warrants:

The Warrant Holder hereby represents and warrants to the Company that the Series A Warrants are held free and clear of all mortgages, liens, licenses, pledges, charges, claims, equities, commitments, security interests, prior assignments encumbrances, agreements, rights of first refusal, options or restrictions of any kind whatsoever (including, without limitation, restrictions on the right to sell or otherwise dispose of the Series A Warrants) or other defects in title.

The Warrant Holder hereby represents and warrants to the Company that it is either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

Executed as of this _____ day of __________, 202__.

Exhibit B

Form of New Warrant