Description of Common Stock

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Voting Rights. The holders of our Common Stock are entitled to one vote for each share of Common Stock held on all matters submitted to a vote of the stockholders, including the election of directors. Our Charter and our Restated Bylaws do not provide for cumulative voting rights.

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Dividend Rights. The holders of outstanding shares of our Common Stock are entitled to receive ratably any dividends declared by our board of directors out of assets legally available for the payment of dividends, at the times and in the amounts as our board may from time to time determine.

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No Preemptive or Similar Rights. The holders of our Common Stock have no preemptive, conversion, or subscription rights, and there are no redemption or sinking fund provisions applicable to our Common Stock.

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Right to Receive Liquidation Distributions. In the event of our liquidation, dissolution or winding up, holders of Common Stock are entitled to receive, pro rata, our assets which are legally available for distribution, after payments of all debts and other liabilities and subject to the preferential rights, if any, on any outstanding shares of Preferred Stock and payment of other claims of creditors.

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Fully Paid and Non-Assessable. All of the outstanding shares of our Common Stock are fully paid and non-assessable.

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Potential Adverse Effect of Future Preferred Stock. The rights, preferences and privileges of the holders of Common Stock are subject to, and might be adversely affected by, the rights of the holders of shares of any series of our Preferred Stock that we may designate and issue in the future.

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Amended warrants to purchase 1,295 shares of Common Stock, issued in December 2018, with an exercise price of $1,008 per share and set to expire in December 2025;

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Amended warrants to purchase 1,475 shares of Common Stock, issued in March 2020, with an exercise price of $1,008 per share and set to expire in September 2025;

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Placement agent warrants to purchase 94 shares of Common Stock, issued in March 2020, with an exercise price of $2,330.24 per share and set to expire in March 2025;

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Amended warrants to purchase 4,865 shares of Common Stock, issued in July 2020, with an exercise price of $1,444.80 per share and set to expire in January 2028;

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Placement agent warrants to purchase 310 shares of Common Stock, issued in July 2020, with an exercise price of $2,055.68 per share and set to expire in July 2025;

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Amended warrants to purchase 2,983 shares of Common Stock, issued in July 2021, with an exercise price of $1,008 per share and set to expire in January 2029; and

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Placement agent warrants to purchase 224 shares of Common Stock, issued in July 2021, with an exercise price of $3,936 per share and set to expire in July 2026.

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Warrants to purchase 6,623 shares of Common Stock, issued in May 2022, with an exercise price of $1,008 per share and set to expire in November 2027;

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Warrants to purchase 1,825 shares of Common Stock, issued in February 2023, with an exercise price of $180 per share and set to expire in February 2028;

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Pursuant to our Amended and Restated 1999 Stock Plan, as amended, options to purchase 9 shares of Common Stock, issuable with a weighted average exercise price of $86,108.80, of which 9 options are exercisable immediately. No additional grants will be made under the 1999 Plan.

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Pursuant to our Amended and Restated 2016 Stock Incentive Plan, as amended (the “2016 Plan”), options to purchase 284 shares of Common Stock, issuable with a weighted average exercise price of $3,251.77, of which 265 options are exercisable immediately. No additional grants will be made under the 2016 Plan.

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Pursuant to our Plan for Employee Inducement Stock Option Grants (“Inducement Plan”), options to purchase 312 shares of Common Stock, issuable with a weighted average exercise price of $3,008.00, of which no options are exercisable immediately. There are no shares of Common Stock reserved for future issuance under the Inducement Plan.

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Pursuant to our 2022 Stock Incentive Plan (the “2022 Plan”), options to purchase 331 shares of Common Stock, issuable with a weighted average exercise price of $992, of which 79 options are exercisable immediately.  There are 1,000 shares of Common Stock reserved for future issuance under the 2022 Plan.

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The terms of each of our 1999 Plan, 2016 Plan, Inducement Plan and 2022 Plan include customary provisions for the adjustment of the exercise price and the aggregate number of shares issuable upon the exercise of the option in the event of dividends, share splits, reorganizations and reclassifications and consolidations.

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Voting Rights. Shares of Series A Preferred Stock will generally have no voting rights, except as required by law and except that the consent of holders of a majority of the then outstanding Series A Preferred Stock will be required to amend the terms of the Series A Preferred Stock or to take other action that adversely affects the rights of the holders of Series A Preferred Stock.

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Dividend Rights. In the event the Company pays dividends on its shares of Common Stock, the holders of the Series A Preferred Stock will be entitled to receive dividends on shares of Series A Preferred Stock equal, on an as-if-converted basis, to and in the same form as paid on the Common Stock. No other dividends will be paid on the shares of Series A Preferred Stock.

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No Preemptive or Similar Rights. The holders of our Series A Preferred Stock have no preemptive, or subscription rights, and there are no redemption or sinking fund provisions applicable to our Series A Preferred Stock.

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Right to Receive Liquidation Distributions. Upon any liquidation, dissolution or winding up of the Company after payment or provision for payment of debts and other liabilities of the Company, the holders of Series A Preferred Stock shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders an amount equal to the amount that a holder of Common Stock would receive if the Series A Preferred Stock were fully converted to Common Stock, which amounts will be paid pari passu with all holders of Common Stock.

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Conversion Rights. Subject to the ownership limitations described below, the Series A Preferred Stock is convertible at any time at the option of the holder into shares of Common Stock at a conversion ratio determined by dividing the stated value of the Series A Preferred Stock by a conversion price of $3,088 per share. The conversion price is subject to adjustment in the case of stock splits, stock dividends, combinations of shares and similar recapitalization transactions.

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Forced Conversion. Subject to the beneficial ownership limitation described below, the Company has the right to cause each holder of the Series A Preferred Stock to convert all or part of such holder’s Series A Preferred Stock in the event that (i) the volume weighted average price of our Common Stock for any 30 consecutive trading days (the “Measurement Period”), exceeds $9,264 (subject to typical adjustments), (ii) the average daily trading volume for such Measurement Period exceeds $175,000 per trading day, and (iii) the holder is not in possession of any information that constitutes or might constitute, material non-public information which was provided by the Company.

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Beneficial Ownership Limitation. The Company will not effect any redemption or conversion of the Series A Preferred Stock, nor shall a holder convert its shares of Series A Preferred Stock, to the extent that such conversion would cause the holder to have acquired, through conversion of the Series A Preferred Stock or otherwise, beneficial ownership of a number of shares of Common Stock in excess of 4.99% (or, at the election of the holder prior to the issuance of any shares of Series A Preferred Stock, 9.99%) of the Common Stock outstanding after giving effect to such exercise.

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 prior to such time, the board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

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 upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares owned by persons who are directors and also officers and by specified employee stock plans; or

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 at or subsequent to the date of the transaction, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.

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Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue one or more series of preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of our company.

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Removal of Directors and Filling of Vacancies. Our Restated Bylaws require the vote of stockholders representing not less than two-thirds of our issued and outstanding capital stock entitled to voting power in order to remove a director from office, with or without cause. In addition, vacancies on our board of directors (including vacancies created by the removal of directors) may be filled by a majority of the remaining directors, even if less than a quorum, or by a sole remaining director, and each director so appointed shall hold office until his or her successor is elected at an annual or a special meeting of our stockholders.

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Special Meeting of Stockholders. Our Restated Bylaws provide that a special meeting of stockholders may be called only by a majority of our board of directors, our president, the chairperson of our board or such other person as our board may designate, in each case, for the purpose specified in the notice of meeting. Our stockholders are not permitted to propose business to be brought before a special meeting of our stockholders.

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Advance Notice Requirements. Our Restated Bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of our board of directors or a committee of the board. These provisions may have the effect of deterring unsolicited offers to acquire our company or delaying stockholder actions, even if they are favored by the holders of a majority of our outstanding voting securities.

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No Cumulative Voting. Our Charter does not permit cumulative voting. Without cumulative voting, a minority stockholder may not be able to gain as many seats on our board of directors as the stockholder would be able to gain if cumulative voting were permitted. The absence of cumulative voting makes it more difficult for a minority stockholder to gain a seat on our board to influence our board’s decision regarding a takeover.