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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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): October 17, 2023
LUCID
DIAGNOSTICS INC. |
(Exact
Name of Registrant as Specified in Charter) |
Delaware |
|
001-40901 |
|
82-5488042 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
360
Madison Avenue, 25th
Floor, New York, New York |
|
10017 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (917) 813-1828
N/A |
(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 (see General Instruction A.2. below):
☐ |
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 $0.001 Per Share |
|
LUCD |
|
The
Nasdaq Stock Market LLC |
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
3.02. | Unregistered
Sales of Equity Securities. |
Effective
as of October 17, 2023, Lucid Diagnostics Inc. (the
“Company”) entered into subscription agreements (each, a “Subscription Agreement”) with certain
accredited investors for the sale of 5,000 shares of the Company’s newly designated Series A-1 Convertible Preferred Stock, par
value $0.001 per share (the “Series A-1 Preferred Stock”), at a purchase price of $1,000 per share, for aggregate
gross proceeds to the Company of $5.0 million. The closing of the sale occurred on October 18, 2023. In connection with the sale,
on the day of the closing (the “Effective Date”), the Company filed a Certificate of Designation of Preferences,
Rights and Limitations of the Series A-1 Preferred Stock with the Secretary of State of the State of Delaware (the “Certificate
of Designation”). The key terms of the Series A-1 Preferred Stock (which, other than with respect to the conversion price,
are substantially identical to the key terms of the Company’s Series A Convertible Preferred Stock, par value $0.001 per share
(the “Series A Preferred Stock”), that was issued in March 2023) are as follows:
Conversion.
Each share of Series A-1 Preferred Stock is convertible at the option of the holder, from and after the six-month anniversary of its
issuance (or, if later, the effective date of a registration statement covering the resale of the conversion shares), and subject to
certain beneficial ownership limitations as set forth in the Certificate of Designation and described below, into such number of shares
of the Company’s common stock, par value $0.001 per share (the “Common Stock”), as is equal to the number of
shares of Series A-1 Preferred Stock to be converted, multiplied by the stated value of $1,000 (the “Stated Value”),
divided by the conversion price in effect at the time of the conversion. The initial conversion price will be $1.2592, subject to adjustment
in the event of stock splits, stock dividends, and similar transactions. In addition, the Series A-1 Preferred Stock will automatically
convert into shares of Common Stock, subject to certain beneficial ownership limitations as set forth in the Certificate of Designation
and described below, on October 18, 2025.
Rank.
The Series A-1 Preferred Stock will be pari passu with the Company’s Series A Preferred Stock and any other class of the Company’s
capital stock that is by its terms pari passu with the Series A-1 Preferred Stock. The Series A-1 Preferred Stock will be senior to the
Common Stock and any other class of the Company’s capital stock that is not by its terms senior to or pari passu with the Series
A-1 Preferred Stock.
Dividends.
The holders of Series A-1 Preferred Stock will be entitled to dividends payable as follows: (i) a number of shares of Common Stock equal
to 20% of the number of shares of Common Stock issuable upon conversion of the Series A-1 Preferred Stock then held by such Holder on
October 18, 2024, and (ii) a number of shares of Common Stock equal to 20% of the number of shares of Common Stock issuable upon
conversion of the Series A-1 Preferred Stock then held by such Holder on October 18, 2025. A holder that converts its Series A-1
Preferred Stock prior to October 18, 2024 or October 18, 2025, as the case may be, will not receive the dividend that accrues
on such date with respect to such converted Series A-1 Preferred Stock. The holders of the Series A-1 Preferred Stock also will be entitled
to dividends equal, on an as-if-converted to shares of Common Stock basis, to and in the same form as dividends actually paid on shares
of the Common Stock when, as, and if such dividends are paid on shares of the Common Stock.
Liquidation.
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company (or any Deemed Liquidation Event as
defined in the Certificate of Designation), the holders of shares of Series A-1 Preferred Stock then outstanding will be entitled to
be paid out of the assets of the Company available for distribution to its stockholders, before any payment shall be made to the holders
of Common Stock by reason of their ownership thereof, and pari passu with the holders of the Series A Preferred Stock, an amount per
share equal to the greater of (i) the Stated Value, plus any dividends accrued but unpaid thereon, or (ii) such amount per share as would
have been payable had all shares of Series A-1 Preferred Stock been converted into Common Stock immediately prior to such event.
Voting.
Except as otherwise provided in the Certificate of Designation or as otherwise required by law, the holders of outstanding shares of
Series A-1 Preferred Stock will have no voting rights.
Beneficial
Ownership Limitation. The Company will not effect any conversion of the Series A-1 Preferred Stock, and a holder will not have the
right to receive dividends or convert any portion of the Series A-1 Preferred Stock, to the extent that, after giving effect to the receipt
of dividends or the conversion, the holder (together with such holder’s affiliates, and any persons acting as a group together
with such holder or any of the holder’s affiliates) would beneficially own in excess of 4.99% of the Company’s outstanding
common stock (or, upon election of the holder, 9.99% of the Company’s outstanding common stock).
The
Company and the investors in the Offering also executed a registration rights agreement (the “Registration Rights Agreement”),
pursuant to which the Company agreed to file a registration statement covering the resale of the shares of Common Stock issuable pursuant
to the Series A-1 Preferred Stock.
The
offer and sale of the shares of Series A-1 Preferred Stock, and the shares of Common Stock issuable upon conversion of, and in payment
of dividends on, the Series A-1 Preferred Stock, are exempt from the registration requirements of the Securities Act of 1933, as amended
(the “Securities Act”), pursuant to Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated
thereunder because, among other things, the transaction did not involve a public offering, the investors are accredited investors, the
investors are taking the securities for investment and not resale and the Company took appropriate measures to restrict the transfer
of the securities.
The
securities have not been registered under the Securities Act and may not be offered or sold in United States absent registration or an
exemption from registration. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these Securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
The
forgoing description of the Certificate of Designation and the Registration Rights Agreement is qualified in its entirety by reference
to the full text of such documents, copies of which are filed as Exhibit 3.1 and 10.1 to this Current Report on Form 8-K.
Item
3.03. | Material
Modification to Rights of Security Holders. |
The
information set forth under Item 3.02 and Item 5.03 is incorporated herein by reference.
Item
5.03. | Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The
information set forth under Item 3.02 is incorporated herein by reference. The Amended and Restated Certificate of Incorporation of the
Company authorizes the issuance of up to 20,000,000 shares of preferred stock, par value $0.001 per share, and further authorizes the
Board of the Company to fix and determine the designation, preferences, conversion rights, or other rights, including voting rights,
qualifications, limitations, or restrictions of the preferred stock. The Certificate of Designation designates up to 5,000 of the shares
of preferred stock as Series A-1 Preferred Stock.
Item
9.01. | Financial
Statements and Exhibits. |
(d)
Exhibits:
SIGNATURE
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.
Dated:
October 18, 2023 |
LUCID
DIAGNOSTICS INC. |
|
|
|
|
By:
|
/s/
Dennis McGrath |
|
|
Dennis
McGrath |
|
|
Chief
Financial Officer |
Exhibit
3.1
LUCID
DIAGNOSTICS INC.
CERTIFICATE
OF DESIGNATION OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES
A-1 CONVERTIBLE PREFERRED STOCK
PURSUANT
TO SECTION 151 OF THE
DELAWARE
GENERAL CORPORATION LAW
The
undersigned, Lishan Aklog, does hereby certify that:
| 1. | He
is the Chief Executive Officer of Lucid Diagnostics Inc., a Delaware corporation (the “Corporation”). |
| 2. | The
Corporation is authorized to issue 20,000,000 shares of preferred stock. |
| 3. | The
following resolutions were duly adopted by the board of directors of the Corporation (the
“Board of Directors”): |
WHEREAS,
the certificate of incorporation of the Corporation (the “Certificate of Incorporation”) provides for a class of its
authorized stock known as preferred stock, consisting of 20,000,000 shares, $0.001 par value per share, issuable from time to time in
one or more series;
WHEREAS,
the Board of Directors is authorized, without further stockholder approval, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences, and rights of the shares of each such series and any qualifications,
limitations or restrictions thereof; and
WHEREAS,
it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and
other matters relating to a series of the preferred stock, which shall consist of up to 5,000 shares of the preferred stock which the
Corporation has the authority to issue as Series A-1 Convertible Preferred Stock, as follows:
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or
exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters
relating to such series of preferred stock as follows:
TERMS
OF PREFERRED STOCK
Section
1. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate
Consideration” shall have the meaning set forth in Section 7(c).
“Attribution
Parties” shall have the meaning set forth in Section 6(e).
“Beneficial
Ownership Limitation” shall have the meaning set forth in Section 6(e).
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Corporation’s common stock, par value $0.001 per share, and stock of any other class of securities into
which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Corporation or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, 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 Stock.
“Conversion
Amount” means the sum of the Stated Value of the shares of Series A-1 Preferred Stock then to be converted.
“Conversion
Date” shall have the meaning set forth in Section 6(b).
“Conversion
Price” shall have the meaning set forth in Section 6(c).
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series A-1 Preferred Stock
in accordance with the terms hereof.
“Conversion
Shares Registration Statement” means a registration statement that registers the resale of any Conversion Shares of the Holders,
who shall be named as “selling stockholders” therein.
“Corporation
Conversion Notice” means a notice delivered by the Company to effect a Mandatory Conversion of all the outstanding Series A-1
Preferred Stock in connection with a Fundamental Transaction, provided that such notice shall provide that the effective time of such
Mandatory Conversion shall be immediately prior to, and conditioned on, the consummation of the Fundamental Transaction.
“Deemed
Liquidation Event” shall have the meaning set forth in Section 5(c).
“Distribution”
shall have the meaning set forth in Section 7(b).
“Dividend
Shares” shall have the meaning set forth in Section 3.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Fundamental
Transaction” shall have the meaning set forth in Section 7(c).
“Holder”
shall have the meaning given such term in Section 2.
“Initial
Permitted Conversion Date” shall have the meaning set forth in Section 6(g).
“Issuance
Date” means the date upon which a share of Series A-1 Preferred Stock was issued.
“Junior
Stock” shall mean the Common Stock and any other class of the Corporation’s capital stock that is not by its terms expressly
senior to, or pari passu with, the Series A-1 Preferred Stock.
“Liquidation”
shall have the meaning set forth in Section 5(a).
“Mandatory
Conversion” shall have the meaning set forth in Section 6(b).
“Mandatory
Conversion Date” shall have the meaning set forth in Section 6(b).
“Mandatory
Conversion Determination” shall have the meaning set forth in Section 6(b).
“New
York Courts” shall have the meaning set forth in Section 8(d).
“Notice
of Conversion” shall have the meaning set forth in Section 6(a).
“Optional
Conversion Date” shall have the meaning set forth in Section 6(a).
“Parity
Stock” shall mean any class of the Corporation’s capital stock that is by its terms expressly pari passu with
the Series A-1 Preferred Stock, including without limitation the Series A Preferred Stock.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIK
Shares” shall have the meaning set forth in Section 3.
“Required
Majority” means Holders holding and having the right to hold at least a majority of the shares of Common Stock issuable upon
conversion of the Series A-1 Preferred Stock then outstanding.
“Securities”
means the Series A-1 Preferred Stock.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series
A Preferred Stock” means the Series A Convertible Preferred Stock, par value $0.001 per share, of the Corporation.
“Series
A-1 Liquidation Amount” shall have the meaning set forth in Section 5(a).
“Series
A-1 Preferred Stock” shall have the meaning set forth in Section 2.
“Share
Delivery Date” shall have the meaning set forth in Section 6(d)(i).
“Stated
Value” shall have the meaning set forth in Section 2.
“Subsidiary”
means any subsidiary of the Corporation and shall, where applicable, also include any direct or indirect subsidiary of the Corporation
formed or acquired after the date of this Certificate of Designation.
“Successor
Entity” shall have the meaning set forth in Section 7(c).
“Trading
Day” means a day on which the principal Trading Market is open for business.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange
or the OTCQB, OTCQX or OTCPink (or any successors to any of the foregoing).
“Transaction
Documents” means this Certificate of Designation, all exhibits and schedules thereto and hereto and any other documents or
agreements executed in connection therewith.
“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Corporation, with a mailing
address of 1 State Street, 30th Floor, New York, NY 10004-1561, and any successor transfer
agent of the Corporation.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:00 p.m. (New York City time), or (b) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the Required Majority and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
Section
2. Designation, Amount and Par Value, Ranking. The series of preferred stock shall be designated as Series A-1 Convertible Preferred
Stock (the “Series A-1 Preferred Stock”) and the number of shares so designated shall be up to 5,000 (which shall not be
subject to increase without the written consent of holders of the Corporation’s Series A-1 Preferred Stock (each a “Holder”
and collectively, the “Holders”) representing the Required Majority; provided, however, the Corporation shall have the right
to increase such number without receiving such written consent for the purpose of paying dividends with shares of Series A-1 Preferred
Stock.) Each share of Series A-1 Preferred Stock shall have a par value of $0.001 per share and a stated value equal to $1,000.00 (the
“Stated Value”). The Series A-1 Preferred Stock shall be senior to all Junior Stock with respect to dividends and, as more
fully set forth in Section 5, assets distributed in a Liquidation. It shall be pari passu with the Parity Stock, and shall be
junior to any class of security that is expressly by its terms senior and approved by the Series A-1 Preferred Stock under Section 4.
The Series A-1 Preferred Stock shall not be redeemed for cash and under no circumstances shall the Corporation be required to net cash
settle the Series A-1 Preferred Stock, or to pay any liquidated damages on account of any failure to satisfy any of its obligations under
this Certificate of Designation.
Section
3. Dividends. Holders of shares of Series A-1 Preferred Stock will be entitled to receive: (a) dividends payable as
follows: (i) a number of shares of Common Stock equal to twenty percent (20%) of the number of shares of Common Stock issuable upon
conversion of the Series A-1 Preferred Stock then held by such Holder on the 12-month anniversary of the Issuance Date, and (ii) a
number of shares of Common Stock equal to twenty percent (20%) of the number of shares of Common Stock issuable upon conversion of
the Series A-1 Preferred Stock then held by such Holder on the 24-month anniversary of the Issuance Date (collectively, the
“PIK Shares”); and (b) dividends equal, on an as-if-converted to shares of Common Stock basis, to and in the same form
as dividends actually paid on shares of the Common Stock when, as, and if such dividends are paid on shares of the Common Stock. The
dividends set forth in clause (a) of this Section 3 will be satisfied solely by delivery of shares of Common Stock. The dividends
set forth in clause (a) shall be accelerated and paid (to the extent not previously paid) upon the consummation of a Fundamental
Transaction. The dividends set forth in clause (a) shall be paid (to the extent accrued and not previously paid) upon the Mandatory
Conversion Date. Notwithstanding the foregoing, to the extent that a Holder’s right to participate in any dividend of PIK
Shares or any stock dividend declared on the Common Stock to which such Holder is entitled to pursuant to clause (b) of this Section
3 (“Dividend Shares”) would result in such Holder exceeding the Beneficial Ownership Limitation, then such Holder shall
not be entitled to participate in any such dividend to such extent (or in the beneficial ownership of any PIK Shares or Dividend
Shares as a result of such dividend to such extent) and the portion of such PIK Shares and/or Dividend Shares that would cause such
Holder to exceed the Beneficial Ownership Limitation shall be held in abeyance for the benefit of such Holder until such time, if
ever, as such Holder’s beneficial ownership thereof would not result in such Holder exceeding the Beneficial Ownership
Limitation.
Section
4. Voting Rights. Except as otherwise provided herein or as otherwise required by law, the Holders of outstanding shares of
Series A-1 Preferred Stock shall have no voting rights. However, as long as any shares of Series A-1 Preferred Stock are
outstanding, the Corporation may not, without the consent of the Required Majority, (a) amend, alter or repeal any provision of this
Certificate of Designation in a manner that adversely affects the powers, preferences or rights of the Series A-1 Preferred Stock,
(b) increase the number of authorized shares of Series A-1 Preferred Stock or (c) issue, or obligate itself to issue shares of, any
additional class or series of capital stock unless the same ranks junior or pari passu to the Series A-1 Preferred Stock with
respect to the distribution of assets on Liquidation.
Section
5. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.
a) Preferential
Payments to Holders of Series A-1 Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation (a “Liquidation”) or Deemed Liquidation Event, the holders of shares of Series A-1 Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders,
before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, and on a pari passu basis
with holders of any Parity Stock, an amount per share equal to the greater of (i) the Stated Value, plus any dividends accrued but unpaid
thereon, or (ii) such amount per share as would have been payable had all shares of Series A-1 Preferred Stock been converted into Common
Stock pursuant to Section 6 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amount payable
pursuant to this sentence is hereinafter referred to as the “Series A-1 Liquidation Amount”). If upon any such liquidation,
dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to
its stockholders shall be insufficient to pay the holders of shares of Series A-1 Preferred Stock the full amount to which they shall
be entitled under this subparagraph a) and to pay the holders of any Parity Stock the full amount to which they are entitled pursuant
to the terms of such Parity Stock, the holders of shares of Series A-1 Preferred Stock and any Parity Stock shall share ratably in any
distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect
of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
b) Payments
to Holders of Common Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation
or Deemed Liquidation Event, after the payment of all preferential amounts required to be paid to the holders of shares of Series A-1
Preferred Stock and any Parity Stock, the remaining assets of the Corporation available for distribution to its stockholders shall be
distributed among the holders of shares of Common Stock, pro rata based on the number of shares held by each such holder.
c) Deemed
Liquidation Events. A “Deemed Liquidation Event” shall mean (i) a merger or consolidation in which the Corporation
is a constituent party or a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock
pursuant to such merger or consolidation, provided, however, a Deemed Liquidation Event shall not include any such merger or consolidation
involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such
merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately
following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting
corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following
such merger or consolidation, the parent corporation of such surviving or resulting corporation; or (ii) the sale, lease, transfer, exclusive
license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the
Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or the sale or disposition
(whether by merger, consolidation or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of
the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer,
exclusive license or other disposition is to a wholly owned subsidiary of the Corporation.
d) Effecting
a Deemed Liquidation Event. The Corporation shall not have the power to effect a Deemed Liquidation Event unless the agreement or
plan of merger or consolidation for such transaction provides that the consideration payable to the stockholders of the Corporation shall
be allocated among the holders of capital stock of the Corporation in accordance with the provisions hereof.
Section
6. Conversion.
a) Conversions
at Option of Holder. Subject to Section 6(g), each share of Series A-1 Preferred Stock shall be convertible, at any time and from
time to time, at the option of the Holder thereof, into that number of shares of Common Stock (subject to the Beneficial Ownership Limitation
set forth in Section 6(e) and any Primary Market Limitation set forth in Section 6(f)) determined by dividing the Stated Value of such
share of Series A-1 Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation with the form
of conversion notice attached hereto as Annex A (a “Notice of Conversion”) and by surrendering such Holder’s
certificate or certificates for all such shares of Series A-1 Preferred Stock being converted (or, if such Holder alleges that such certificate
has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify
the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such
certificate) to the Corporation at the place designated in such notice. (For purposes hereof, the date upon which both the Notice of
Conversion is received and the certificate is surrendered (or a lost certificate affidavit and an indemnity agreement in a form acceptable
to the Corporation is received) is hereafter referred to as the “Optional Conversion Date.”) Within three (3) Trading
Days after the Optional Conversion Date, the Corporation shall issue and deliver to such Holder, or to his, her or its nominees, a certificate
or certificates for the Conversion Shares issuable upon conversion of such Holder’s Series A-1 Preferred Stock in accordance with
the further provisions hereof. If a certificate has not been converted in full, the Corporation shall within three (3) Trading Days after
the Share Delivery Date issue to Holder a new certificate representing the shares of Series A-1 Preferred Stock underlying the certificate
that was surrendered which were not converted. To the extent that the Beneficial Ownership Limitation contained in Section 6(e) applies
to the converting Holder, the determination of whether the Series A-1 Preferred Stock is convertible (in relation to other securities
owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Series A-1 Preferred Stock are convertible
shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s
determination of whether the shares of Series A-1 Preferred Stock may be converted (in relation to other securities owned by such Holder
together with any Affiliates and Attribution Parties) and how many shares of the Series A-1 Preferred Stock are convertible, in each
case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent
to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth
in this Section and the Company shall have no obligation to verify or confirm the accuracy of such determination.
b) Mandatory
Conversion. On the earlier to occur of: (i) the time of conversion set forth in a Corporation Conversion Notice that is delivered
by the Corporation to the Holders in connection with a Fundamental Transaction, and (ii) the 24-month anniversary of the Issuance Date
(the “Mandatory Conversion Date” and together with an Optional Conversion Date, the “Conversion Date”),
each outstanding share of Series A-1 Preferred Stock will automatically convert (subject to the Beneficial Ownership Limitation set forth
in Section 6(e) and any Primary Market Limitation set forth in Section 6(f)) into such number of fully paid and non-assessable shares
of Common Stock as is determined by dividing the Stated Value by the Conversion Price in effect on the Mandatory Conversion Date (a “Mandatory
Conversion”). Any Corporation Conversion Notice shall be delivered at least ten (10) Trading Days prior to the consummation
of the Fundamental Transaction to which it relates. Within three (3) Trading Days of (x) the Mandatory Conversion Date, if the shares
of Series A-1 Preferred Stock are held in book entry form, or (y) such Holder’s surrender of its certificated Series A-1 Preferred
Stock, if the Holder’s Series A-1 Preferred Stock is certificated (or, if such Holder alleges that such certificate has been lost,
stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation
against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate),
the Company shall deliver: (I) to each Holder, the Conversion Shares issuable upon conversion of such Holder’s Series A-1 Preferred
Stock, and (II) the PIK Shares, if any, issuable upon Mandatory Conversion under Section 3, to Holders as of the Mandatory Conversion
Date; provided that, any failure by the Holder to return certificated Series A-1 Preferred Stock, if any, will have no effect
on the Mandatory Conversion pursuant to this Section 6(b), which Mandatory Conversion will be deemed to occur on the Mandatory Conversion
Date. To the extent that the Beneficial Ownership Limitation contained in Section 6(e) applies to any Holder, such Holder shall no less
than five Business Days, and no more than ten Business Days, prior to the Mandatory Conversion Date, provide the Company with a written
determination (a “Mandatory Conversion Determination”), delivered in accordance with Section 8, of whether such Holder’s
Series A-1 Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution
Parties) and of how many shares of Series A-1 Preferred Stock are convertible, and the submission of a Mandatory Conversion Determination
shall be deemed to be such Holder’s determination of the maximum number of shares of Series A-1 Preferred Stock that may be converted,
subject to the Beneficial Ownership Limitation. The portion of the shares of Common Stock issuable upon such Mandatory Conversion hereunder
that would cause such Holder to exceed the Beneficial Ownership Limitation or any Primary Market Limitation shall be held in abeyance
for the benefit of such Holder until such time, if ever, as such Holder’s beneficial ownership thereof would not result in such
Holder exceeding the Beneficial Ownership Limitation or until such time, if ever, as the Company obtains the approval of its stockholders
as required by the applicable rules of the applicable Trading Market for issuances of Common Stock in excess of any Primary Market Limitation,
as applicable. To ensure compliance with this restriction, each Holder will be deemed to represent to the Company each time it delivers
a Mandatory Conversion Determination that such determination has not violated the restrictions set forth in Section 6(e) and the Company
shall have no obligation to verify or confirm the accuracy of such determination.
c)
Conversion Price. The conversion price for any Series A-1 Preferred Stock shall be $1.2592, subject to adjustment herein
(the “Conversion Price”).
d) Mechanics
of Conversion.
(i) Delivery
of Conversion Shares Upon Conversion. Not later than three (3) Trading Days after each Conversion Date (but, in the case of a Mandatory
Conversion pursuant to a Corporation Conversion Notice, no later than immediately prior to the time of consummation of the applicable
Fundamental Transaction) (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to
the converting Holder (A) Conversion Shares which shall be free of restrictive legends and trading restrictions representing the number
of Conversion Shares being acquired upon the conversion of the Series A-1 Preferred Stock (assuming for such purposes that the holding
period requirement under Rule 144 promulgated under the Securities Act has been satisfied), and (B) a bank check in the amount of accrued
and unpaid dividends payable in cash, if any. The Corporation shall, at the request of the converting Holder, deliver the Conversion
Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another
established clearing corporation performing similar functions. The Series A-1 Preferred Stock shall not be redeemed for cash and under
no circumstances shall the Corporation be required to net cash settle the Series A-1 Preferred Stock, or to pay any liquidated damages
on account of any failure to satisfy any of its obligations under this Certificate of Designation.
(ii) Failure
to Deliver Conversion Shares. If, in the case of any Notice of Conversion or Corporation Conversion Notice, such Conversion Shares
are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written
notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event
the Corporation shall promptly return to the Holder any original Series A-1 Preferred Stock certificate delivered to the Corporation
and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Conversion
Notice.
(iii) Obligation
Absolute. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Series A-1 Preferred Stock
in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the
same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce
the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other
Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective
of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance
of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any
such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert any or all of the Stated
Value of its Series A-1 Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated
or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from
a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Series A-1 Preferred Stock of such Holder
shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder in the amount of one hundred
fifty percent (150%) of the Stated Value of Series A-1 Preferred Stock which is subject to the injunction, which bond shall remain in
effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder
to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable,
cash (for accrued and declared and unpaid dividends only), upon a properly noticed conversion.
(iv) Reservation
of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized
and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series A-1 Preferred Stock as herein provided,
free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of
the Series A-1 Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into
account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Series A-1 Preferred Stock.
The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued,
fully paid and nonassessable and, if a Conversion Shares Registration Statement with respect to such shares of Common Stock is then effective
under the Securities Act, shall be registered for public resale in accordance with such Conversion Shares Registration Statement.
(v) Fractional
Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of or as dividends on the
Series A-1 Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to upon such conversion or in respect
of any such dividend, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Conversion Price or round up to the next whole share of Common Stock.
(vi) Transfer
Taxes and Expenses. The issuance of Conversion Shares on conversion of this Series A-1 Preferred Stock shall be made without charge
to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares,
provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Series A-1 Preferred
Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting
the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation
that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion
and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for
same-day electronic delivery of the Conversion Shares.
e) Beneficial
Ownership Limitation. The Corporation shall not effect any conversion of the Series A-1 Preferred Stock, including, without limitation,
a Mandatory Conversion, and a Holder shall not have the right to receive dividends hereunder or convert any portion of the Series A-1
Preferred Stock, to the extent that, after giving effect to the receipt of dividends hereunder or conversion set forth on the applicable
Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such
Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess
of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock received
as dividends or issuable upon conversion of the Series A-1 Preferred Stock with respect to which such determination is being made, but
shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Series A-1 Preferred
Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the
limitation contained herein (including, without limitation, the Series A-1 Preferred Stock) beneficially owned by such Holder or any
of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Corporation is not representing to the Holder that such calculation is in compliance with
Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith
(other than as it relates to a Holder relying on the number of shares issued and outstanding as provided by the Corporation pursuant
to this Section). In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 6(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the
most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case
may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a
Holder, the Corporation shall within one Trading Day confirm orally and in writing to such Holder the number of shares of Common Stock
then outstanding. The “Beneficial Ownership Limitation” shall be 4.99% (or, at the written election of any Holder
delivered to the Corporation pursuant to the terms of Section 9 prior to the issuance of any shares of Series A-1 Preferred Stock, 9.99%)
of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable
upon conversion of Series A-1 Preferred Stock held by the applicable Holder. A Holder, upon at least sixty-one (61) days advance notice
to the Corporation, may terminate, increase or decrease the Beneficial Ownership Limitation provisions of this Section 6(e); provided,
however, that the Holder shall not be entitled to increase or terminate the limitation contained in this Section 6(e) if the Holder has
acquired (or if any of the Holder’s Attribution parties has indirectly acquired) the Series A-1 Preferred Stock with the purpose
or effect of changing or influencing the control of the Corporation. The limitations contained in this Section 6(e) shall apply to a
successor holder of Series A-1 Preferred Stock.
f) Primary
Market Limitation. Unless the approval of the Corporation’s stockholders is not required by the applicable rules of the applicable
Trading Market for issuances of Common Stock in excess of the Primary Market Limitation (as defined below), or the Corporation has obtained
such approval, the Corporation shall not effect any conversion of the Series A-1 Preferred Stock, including, without limitation, a Mandatory
Conversion, and a Holder shall not have the right to receive dividends hereunder or convert any portion of the Series A-1 Preferred Stock,
to the extent that, after giving effect to the receipt of dividends hereunder or conversion set forth on the applicable Notice of Conversion
or Corporation Conversion Notice, the Holder would have received in respect of its shares of Series A-1 Preferred Stock in excess of
its pro rata share of the Primary Market Limitation (as defined below). For purposes of the foregoing sentence, the Holder’s pro
rata share of the Primary Market Limitation shall be equal to (i) the original purchase price paid to the Corporation for all the shares
of Series A-1 Preferred Stock acquired by the Holder (and not subsequently disposed of, other than pursuant to a conversion hereunder),
divided by (ii) the aggregate original purchase price paid to the Corporation for all the outstanding shares of Series A-1 Preferred
Stock and all other securities aggregated with the Series A-1 Preferred Stock for the purposes of the applicable rules of the applicable
Trading Market. The “Primary Market Limitation” shall be 19.99% of the number of shares of the Common Stock outstanding
immediately before the first sale of Series A-1 Preferred Stock (or the first sale of any other securities aggregated with the Series
A-1 Preferred Stock for the purposes of the applicable rules of the applicable Trading Market, if earlier). The limitations contained
in this paragraph shall apply to a successor holder of the Series A-1 Preferred Stock.
g) Notwithstanding
anything herein to the contrary, in no event shall any Holder be permitted to deliver to the Company a Notice of Conversion, nor shall
the Corporation otherwise be required to issue to a Holder any shares of Common Stock in respect of the conversion of any of such Holder’s
Series A-1 Preferred Stock, until the latest of (i) the six-month anniversary of the Issuance Date in respect of the applicable Series
A-1 Preferred Stock, and (ii) the date that a Conversion Shares Registration Statement with respect to such shares of Common Stock is
declared effective by the Commission (the day after such latest date, the “Initial Permitted Conversion Date”). Any
Notice of Conversion delivered by a Holder in respect of its Series A-1 Preferred Stock prior to the Initial Permitted Conversion Date
shall be null and void ab initio.
Section
7. Certain Adjustments.
a) Stock
Dividends and Stock Splits. If the Corporation, at any time while this Series A-1 Preferred Stock is outstanding: (i) pays a stock
dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other
Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon
conversion of, or payment of a dividend on, this Series A-1 Preferred Stock), (ii) subdivides outstanding shares of Common Stock into
a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the
Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common
Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall
be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) 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.
b) Pro
Rata Distributions. During such time as this Series A-1 Preferred Stock is outstanding, if the Corporation declares or makes any
dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return
of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Series A-1 Preferred Stock, then, in each such case, the Holder shall be entitled to participate
in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of
Common Stock acquirable upon complete conversion of this Series A-1 Preferred Stock (without regard to any limitations on conversion
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such
Distribution would result in the Holder exceeding the Beneficial Ownership Limitation or any Primary Market Limitation, then the Holder
shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock
as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the
Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation or
any Primary Market Limitation).
c) Fundamental
Transaction. If, at any time while this Series A-1 Preferred Stock is outstanding and other than in connection with a Liquidation,
including a Deemed Liquidation Event, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger
or consolidation of the Corporation with or into another Person, (ii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Corporation or another Person) is completed 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 fifty percent (50%) or more of
the outstanding Common Stock, (iii) the Corporation, 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 (iv) the Corporation, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than fifty percent (50%)
of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Series A-1 Preferred
Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately
prior to the occurrence of such Fundamental Transaction, the number of shares of Common Stock of the successor or acquiring corporation
or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Series A-1
Preferred Stock is convertible immediately prior to such Fundamental Transaction. For purposes of any such conversion, the determination
of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion
Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this
Series A-1 Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any
successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the
same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’
right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental
Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the
obligations of the Corporation under this Certificate of Designation and the other Transaction Documents in accordance with the provisions
of this Section 7(g) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder
(without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Series A-1 Preferred
Stock, deliver to the Holder in exchange for this Series A-1 Preferred Stock a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Series A-1 Preferred Stock which is convertible for a corresponding number
of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon conversion of this Series A-1 Preferred Stock (without regard to any limitations on the conversion of this Series A-1 Preferred
Stock) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares
of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of
protecting the economic value of this Series A-1 Preferred Stock immediately prior to the consummation of such Fundamental Transaction),
and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Certificate of Designation and the other Transaction Documents referring to the “Corporation” shall refer instead
to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation
under this Certificate of Designation and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Corporation herein.
d) Calculations.
All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
e) Notice
to the Holders.
(i) Adjustment
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall
promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment.
(ii) Notice
to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer
of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency
maintained for the purpose of conversion of this Series A-1 Preferred Stock, and shall cause to be delivered to each Holder at its last
address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange,
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such
notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Conversion Amount
of this Series A-1 Preferred Stock (or any part hereof) during the twenty (20) day period commencing on the date of such notice through
the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
8. Miscellaneous.
a)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile or e-mail, or sent by a nationally recognized
overnight courier service, addressed to the Corporation, at 360 Madison Avenue, 25th Floor, New York, NY 10017, Attention: Chief Executive
Officer, e-mail address of la@pavmed.com or such other e-mail address or address as the Corporation may specify for such
purposes by notice to the Holders delivered in accordance with this Section 8. Any and all notices or other communications or deliveries
to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, e-mail or sent by a nationally
recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing
on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation, at
the principal place of business of such Holder, as set forth in the Exchange Offer. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered electronically
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication
is delivered electronically 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.
b) Absolute
Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation
of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares
of Series A-1 Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
c) Lost
or Mutilated Stock Certificate. If a Holder’s Series A-1 Preferred Stock certificate shall be mutilated, lost, stolen or destroyed,
the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu
of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series A-1 Preferred Stock so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of
the ownership hereof reasonably satisfactory to the Corporation.
d) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall
be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles
of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the
transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough
of Manhattan (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of
the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the Transaction Documents), 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 such New York
Courts, or such New York Courts are improper or 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
Certificate of Designation 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 applicable law. Each
party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If any party
shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the
investigation, preparation and prosecution of such action or proceeding.
e) Waiver.
Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation 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 Certificate of Designation
or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate
of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter
to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by
the Corporation or a Holder must be in writing.
f) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
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 violates the
applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate
of interest permitted under applicable law.
g) Next
Business Day. 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.
h) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be
deemed to limit or affect any of the provisions hereof.
i) Status
of Converted or Redeemed Series A-1 Preferred Stock. Shares of Series A-1 Preferred Stock may only be issued pursuant to the Exchange
Offer. If any shares of Series A-1 Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume
the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series A-1 Preferred Stock.
*********************
RESOLVED,
FURTHER, that the Chairman, the president or any vice-president, and the secretary or any assistant secretary, of the Corporation be
and they hereby are authorized and directed to prepare and file this Certificate of Designation of Preferences, Rights and Limitations
in accordance with the foregoing resolution and the provisions of Delaware law.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this _____ day of October, 2023.
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Name: |
Dr.
Lishan Aklog |
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Title: |
Chairman
and Chief Executive Officer |
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ANNEX
A
NOTICE
OF CONVERSION
(TO
BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES
OF PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series A-1 Convertible Preferred Stock indicated below into shares of common
stock, par value $0.001 per share (the “Common Stock”), of Lucid Diagnostics Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such
certificates and opinions as may be required by the Corporation in accordance with the Exchange Offer. No fee will be charged to the
Holders for any conversion, except for any such transfer taxes.
Conversion
calculations:
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Date
to Effect Conversion: |
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Number
of shares of Series A-1 Preferred Stock owned prior to Conversion: |
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Number
of shares of Series A-1 Preferred Stock to be Converted: |
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Stated
Value of shares of Series A-1 Preferred Stock to be Converted: |
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Number
of shares of Common Stock to be Issued: |
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Applicable
Conversion Price: |
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Number
of shares of Series A-1 Preferred Stock subsequent to Conversion: |
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Address
for Delivery: |
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or |
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DWAC
Instructions: |
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Broker
no: |
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Account
no: |
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[HOLDER] |
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By: |
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Name: |
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Title: |
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Exhibit
10.1
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into effective as of the date set forth on the
Company’s signature page hereto (the “Effective Date”) between Lucid Diagnostics Inc., a Delaware corporation
(the “Company”), and the persons who have executed a signature page hereto (each, a “Purchaser”
and collectively, the “Purchasers”). Unless otherwise defined herein, capitalized terms have the meanings ascribed
to them in Section 1 of this Agreement. This Agreement is Exhibit B in a package of documents (the “Subscription Package”)
delivered by the Company in connection with the solicitation of subscriptions in the Offering.
RECITALS
WHEREAS,
the Company is conducting a private placement offering (the “Offering”) of a maximum of 5,000 Preferred Shares ($5,000,000);
and
WHEREAS,
in connection with the Offering, the Company agreed to provide certain registration rights related to the shares of Common Stock issuable
upon conversion of the Preferred Shares (the “Conversion Shares”) on the terms set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth herein, the parties
mutually agree as follows:
1. Certain
Definitions. As used in this Agreement, the following terms shall have the following respective meanings:
“Agreement”
has the meaning given it in the preamble to this Agreement.
“Allowed
Delay” has the meaning given it in Section 2(c)(ii) of this Agreement.
“Approved
Market” means the Over-the-Counter Bulletin Board, the OTC Markets, the Nasdaq Stock Market, the New York Stock Exchange or
the NYSE American.
“Blackout
Period” means, with respect to a registration, a period, in each case commencing on the day immediately after the Company notifies
the Purchasers that they are required, because of the occurrence of an event of the kind described in Section 3(f) hereof, to suspend
offers and sales of Registrable Securities during which the Company, in the good faith judgment of its board of directors, determines
(because of the existence of, or in anticipation of, any acquisition, financing activity, or other transaction involving the Company,
or the unavailability for reasons beyond the Company’s control of any required financial statements, disclosure of information
which is in its best interest not to publicly disclose, or any other event or condition of similar significance to the Company) that
the registration and distribution of the Registrable Securities to be covered by such Registration Statement, if any, would be seriously
detrimental to the Company or its stockholders and ending on the earlier of (1) the date upon which the MNPI commencing the Blackout
Period is disclosed to the public or ceases to be material and (2) such time as the Company notifies the selling Holders that the Company
will no longer delay such filing of the Registration Statement, recommence taking steps to make such Registration Statement effective,
or allow sales pursuant to such Registration Statement to resume.
“Commission”
or “SEC” means the U.S. Securities and Exchange Commission or any other applicable federal agency at the time administering
the Securities Act.
“Common
Stock” means the common stock, par value $0.001 per share, of the Company and any and all shares of capital stock or other
equity securities of: (i) the Company which are added to or exchanged or substituted for the Common Stock by reason of the declaration
of any stock dividend or stock split, the issuance of any distribution or the reclassification, readjustment, recapitalization or other
such modification of the capital structure of the Company; and (ii) any other corporation, now or hereafter organized under the laws
of any state or other governmental authority, with which the Company is merged, which results from any consolidation or reorganization
to which the Company is a party, or to which is sold all or substantially all of the shares or assets of the Company, if immediately
after such merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own equity securities having
in the aggregate more than 50% of the total voting power of such other corporation.
“Company”
has the meaning given it in the preamble to this Agreement.
“Conversion
Shares” has the meaning given it in the recitals of this Agreement.
“Effective
Date” has the meaning given it in the preamble to this Agreement.
“Effectiveness
Deadline” means the date that is sixty (60) days after the Registration Filing Date.
“Effectiveness
Period” has the meaning given it in Section 2(a) of this Agreement
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Existing
Registration Rights Agreements” means any registration rights agreement executed on or prior to, and effective as of, the Effective
Date, including, without limitation, that certain Registration Rights Agreement, dated as of March 28, 2022, by and between CF Principal
Investments LLC and the Company, that certain Registration Rights Agreement, dated as of March 7, 2023, by and between the holders of
the Company’s Series A Preferred Stock and the Company (the “Series A Registration Rights Agreement”), and that
certain Registration Rights Agreement, dated as of March 21, 2023, by and between the holder of the Company’s Senior Secured Convertible
Note in an initial principal amount of up to $11,111,110 and the Company.
“Holder”
means a Purchaser or any permitted transferee or assignee thereof to whom a Purchaser assigns its rights under this Agreement and who
agrees to become bound by the provisions of this Agreement in accordance with Section 6 and any transferee or assignee thereof to whom
a transferee or assignee assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 6.
“Legend
Removal Certificate” has the meaning given it in Section 3(l) of this Agreement.
“Legend
Removal Shares” has the meaning given it in Section 3(l) of this Agreement.
“Majority
Holders” means at any time holders of at least a majority of the Registrable Securities.
“MNPI”
means material non-public information within the meaning of Regulation FD promulgated under the Exchange Act, which shall, in any case,
include the receipt of the notice pursuant to Section 2(c) and the information contained in such notice.
“Piggyback
Registration” means, in any registration of Common Stock as set forth in Section 2(d), the ability of holders of Registrable
Securities to include Registrable Securities in such registration.
“Preferred
Stock” or “Preferred Shares” means the Company’s Series A-1 Convertible Preferred Stock, par value
$0.001 per share, sold at the Initial Closing (as defined in the Subscription Agreement), or any separate sub-series with an alternative
sub-series title (Series A-2, Series A-3, etc.) and a different conversion price, issued at an Additional Closing (as defined in the
Subscription Agreement). Other than with respect to the conversion price, the terms of each sub-series of Preferred Stock will be identical
in all respects.
The
terms “register,” “registered,” and “registration” refer to a registration effected
by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness
of such registration statement.
“Registrable
Securities” means (i) the Conversion Shares issued or issuable upon conversion of the Preferred Shares, (ii) any capital stock
of the Company issued or issuable with respect to the Conversion Shares as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitations on conversion of the Preferred Shares, and (iii) the “Registrable
Securities” as defined in the Series A Registration Rights Agreement.
“Registration
Filing Date” means the earlier of (i) date that the Registration Statement is filed with the Commission or (ii) one hundred
twenty (120) days after the date of the final closing of the Offering.
“Registration
Statement” means the registration statement that the Company is required to file pursuant to this Agreement to register the
Registrable Securities.
“Rule
144” means Rule 144 promulgated by the Commission under 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.
“Rule
415” means Rule 415 promulgated by the Commission under 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.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar federal statute promulgated in replacement thereof, and the
rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Series
A Registration Rights Agreement” has the meaning given it in the definition of “Existing Registration Rights Agreement.”
“Subscription
Agreement” means the Subscription Agreement attached as Exhibit A to the Subscription Package.
“Subscription
Package” has the meaning given it in the preamble to this Agreement.
2. Registration.
(a) Mandatory
Registration. Not later than the Registration Filing Date, the Company shall file with the Commission a Registration Statement on
Form S-1, Form S-3 or any other appropriate form, relating to the resale by the Holders of all of the Registrable Securities, and the
Company shall use commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as
soon as practicable thereafter, but in no event later than the Effectiveness Deadline and shall use its best efforts to keep such Registration
Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration
Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant
to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under 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 and the affected Holders (the “Effectiveness Period”). The registration rights under
this Section 2 shall not apply or be available with respect to the officers and directors of the Company and their affiliates.
(b) Allocation
of Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and any increase in
the number of Registrable Securities included therein shall be allocated pro rata among the Holders based on the number of Registrable
Securities held by each Holder at the time the Registration Statement covering such initial number of Registrable Securities or increase
thereof is declared effective by the SEC. In the event that a Holder sells or otherwise transfers any of such Holder’s Registrable
Securities, each transferee shall be allocated a pro rata portion of the then remaining number of Registrable Securities included in
such Registration Statement for such transferor. Any shares of Common Stock included in a Registration Statement and which remain allocated
to any Person which ceases to hold any Registrable Securities covered by such Registration Statement shall be allocated to the remaining
Holders, pro rata based on the number of Registrable Securities then held by such Holders which are covered by such Registration Statement.
In no event shall the Company include any securities other than Registrable Securities on any Registration Statement without the prior
written consent of the Majority Holders.
(c) Reduction
of Included Securities; Suspension of Registration Statement.
(i) If
the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject
to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason is the Commission’s determination
that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415
may not be relied upon for the registration of the resale of any or all of the Registrable Securities, and/or (z) a Holder of any Registrable
Securities must be named as an underwriter, the Holders understand and agree the Company may reduce, on a pro rata basis, the total number
of Registrable Securities to be registered on behalf of each such Holder. In any such pro rata reduction, the number of Registrable Securities
to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of unregistered Conversion
Shares. In addition, any such affected Holder shall be entitled to Piggyback Registration rights after the Registration Statement is
declared effective by the Commission until such time as: (A) all Registrable Securities have been registered pursuant to an effective
Registration Statement, (B) the Registrable Securities may be resold without restriction pursuant to SEC Rule 144 of the Securities Act
or (C) the Holder agrees to be named as an underwriter in any such registration statement. The Holders acknowledge and agree the provisions
of this paragraph may apply to more than one Registration Statement; and
(ii) For
not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, and during
any Blackout Period, the Company may suspend the use of any prospectus included in any Registration Statement contemplated by this Section
in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of MNPI 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 affected Registration Statement or the related prospectus so that (i) such Registration Statement 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 or (ii) such prospectus shall not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, including in
connection with the filing of a post-effective amendment to such Registration Statement in connection with the Company’s filing
of an Annual Report on Form 10-K for any fiscal year (an “Allowed Delay”); provided, that the Company shall promptly
(a) notify each Holder in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Holder)
disclose to such Holder any MNPI giving rise to an Allowed Delay, (b) advise the Holders in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as
practicable or, in the event of a Blackout Period, as promptly as practicable following the Blackout Period.
(d) Piggyback
Registration Rights. In addition to the Company’s agreement pursuant to Section 2(a) above, if the Company shall, at any time
during the Effectiveness Period or as contemplated pursuant to Section 2(c) and ending when all Registrable Securities have been sold
by Holders, determine (i) to register for sale any of its Common Stock in an underwritten offering, or (ii) to file a registration statement
covering the resale of any shares of the Common Stock held by any of its stockholders (other than (w) any registration statement on Form
S-8 or Form S-4, (x) any registration statement for an offering pursuant to Rule 415(a)(1)(x) under the Securities Act, except to the
extent a prospectus for an immediate underwritten offering or a prospectus covering the resale of any shares of the Common Stock held
by any of its stockholders, in each case meeting the requirements of Section 10(a) of the Securities Act, is included therein at the
initial effective time thereof, (y) any registration statement filed as contemplated by Section 2(a) above, and (z) any registration
statement filed as contemplated by the Existing Registration Rights Agreements), the Company shall provide written notice to the Holders,
which notice shall be provided no less than fifteen (15) calendar days prior to the filing of such applicable registration statement
(the “Company Notice”). In that event, the right of any Holder to include the Registrable Securities in such a registration
shall be conditioned upon such Holder’s written request to participate which shall be delivered to the Company within ten (10)
calendar days after the Company Notice, as well as such Holder’s participation in such underwriting (if applicable, for purposes
of this paragraph) and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein.
All Holders proposing to sell any of their Registrable Securities through such underwriting shall (together with the Company and any
other stockholders of the Company selling their securities through such underwriting) enter into an underwriting agreement in customary
form with the underwriter selected for such underwriting. Notwithstanding anything herein to the contrary, if the underwriter determines
that marketing factors require a limitation on the number of shares of Common Stock or the amount of other securities to be underwritten,
the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all
Holders (except those Holders who failed to timely elect to include their Registrable Securities through such underwriting or have indicated
to the Company their decision not to do so), and indicate to each such Holder the number of shares of Registrable Securities that may
be included in the registration and underwriting, if any. The number of Registrable Securities to be included in such registration and
underwriting shall be allocated first to the Company, then to all other selling stockholders, including the Holders, who have requested
to sell in the registration on a pro rata basis according to the number of shares requested to be included therein. If any Holder disapproves
of the terms of any such underwriting, such Holder may elect to withdraw such Holder’s Registrable Securities therefrom by delivering
a written notice to the Company and the underwriter. A Holder with Registrable Securities included in any registration shall furnish
to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such
securities as shall be required in order to comply with any applicable law or regulation in connection with the registration of such
Holder’s Registrable Securities or any qualification or compliance with respect to such Holder’s Registrable Securities and
referred to in this Agreement. The Company shall have the right to terminate or withdraw any registration initiated by it before the
effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. Notwithstanding
the foregoing, the Company shall not be required to register any Registrable Securities pursuant to this Section 2(d) that are eligible
for resale pursuant to Rule 144 without restriction (including, without limitation, volume restrictions) or that are the subject of a
then-effective Registration Statement. The Company may postpone or withdraw the filing or the effectiveness of a piggyback registration
at any time in its sole discretion.
(e) Market
Stand Off. In connection with any underwritten offering of equity securities of the Company (subject to the Company’s compliance
with Section 2(d)), if requested by the managing underwriter, each Holder agrees that it shall not transfer any shares of Common Stock,
Preferred Stock or other equity securities of the Company (other than those included in such underwritten offering pursuant to this Agreement),
without the prior written consent of the Company and the managing underwriter, during the 90-day period (or such shorter time agreed
to by the managing underwriters) beginning on the date of pricing of such offering (the “Lock-Up Period”), except
as expressly permitted by such lock-up agreement or in the event the managing underwriters otherwise consent in writing. Each Holder
agrees to execute a customary lock-up agreement in favor of the underwriters to such effect (in each case on substantially the same terms
and conditions as the directors, executive officers and/or other stockholders of the Company). During the Lock-Up Period, the Company
will not be obligated to include any Registrable Securities that are then subject to such a lock-up agreement in any subsequent registration
statement pursuant to Section 2(d).
3. Registration
Procedures for Registrable Securities. The Company will keep each Holder reasonably advised as to the filing and effectiveness of
the Registration Statement. At its expense with respect to the Registration Statement, the Company will:
(a) prepare
and file with the Commission with respect to the Registrable Securities, a Registration Statement on Form S-1, Form S-3, or any other
form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for
the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its commercially reasonable
efforts to cause such Registration Statement to become effective and shall remain effective during the Effectiveness Period. Thereafter,
the Company shall be entitled to withdraw such Registration Statement and the Holders shall have no further right to offer or sell any
of the Registrable Securities registered for resale thereon pursuant to the respective Registration Statement (or any prospectus relating
thereto);
(b) if
the Registration Statement is subject to review by the Commission, respond in a commercially reasonable manner to all comments and diligently
pursue resolution of any comments to the satisfaction of the Commission;
(c) prepare
and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration
Statement effective during the Effectiveness Period;
(d) furnish,
without charge, to each Holder of Registrable Securities covered by such Registration Statement (i) a reasonable number of copies of
such Registration Statement (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement
thereto as such Holder may reasonably request, (ii) such number of copies of the prospectus included in such Registration Statement (including
each preliminary prospectus and any other prospectus filed under Rule 424 of the Securities Act) as such Holders may reasonably request,
in conformity with the requirements of the Securities Act, and (iii) such other documents as such Holder may require to consummate the
disposition of the Registrable Securities owned by such Holder, but only during the Effectiveness Period;
(e) use
its commercially reasonable efforts to register or qualify such registration under such other applicable securities laws of such jurisdictions
as any Holder of Registrable Securities covered by such Registration Statement reasonably requests and as may be necessary for the marketability
of the Registrable Securities (such request to be made by the time the applicable Registration Statement is deemed effective by the Commission)
and do any and all other acts and things necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Holder; provided, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph, (ii) subject itself to taxation in any such jurisdiction,
or (iii) consent to general service of process in any such jurisdiction;
(f) notify
each Holder of Registrable Securities, the disposition of which requires delivery of a prospectus relating thereto under the Securities
Act, of the happening of any event (as promptly as practicable after becoming aware of such event), which comes to the Company’s
attention, that will after the occurrence of such event cause the prospectus included in such Registration Statement, if not amended
or supplemented, to contain an untrue statement of a material fact or an omission to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company shall promptly
thereafter prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under
the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, unless suspension of the use of such prospectus otherwise is authorized
herein (including, without limitation, in the case of an Allowed Delay) or in the event of a Blackout Period, in which case no supplement
or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout Period;
(g) comply,
and continue to comply during the Effectiveness Period, in all material respects with the Securities Act and the Exchange Act and with
all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such Registration
Statement;
(h) as
promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant
to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration
Statement;
(i) use
its commercially reasonable efforts to cause all the Registrable Securities covered by the Registration Statement to be listed or quoted
on such Approved Market on which securities of the same class or series issued by the Company are then listed or quoted;
(j) provide
a transfer agent and registrar, which may be a single entity, for the shares of Common Stock registered hereunder;
(k) though
the Registrable Securities will be issued in book entry form, if requested by the Holders, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration
Statement, which certificates shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names as any such Holders may request;
(l) use
commercially reasonable efforts to (i) cause its legal counsel, at the Company’s expense, (a) to issue to the transfer agent for
the Common Stock, within a reasonable period of time after the Effective Date, a “blanket” legal opinion in customary form
to the effect that the Registrable Securities covered by the Registration Statement have been registered for resale under the Securities
Act and, if such counsel has requested and received a signed certificate (a “Legend Removal Certificate”) from a Holder
of the Registrable Securities, may then be reissued without any legend or restriction relating to their status as “restricted securities”
as defined in Rule 144 (“Legend Removal Shares”) upon resale pursuant to such Registration Statement; and (b) promptly
to amend such opinion to cause the Registrable Securities to be Legend Removal Shares after later receipt of a Legend Removal Certificate
from the Holder, and (ii) cause the transfer agent for the Common Stock to issue such Registrable Securities without any such legend
within three (3) trading days after the transfer agent’s receipt of such legal opinion with respect to Legend Removal Shares or
otherwise within three (3) trading days after the transfer agent’s receipt of evidence in customary form that the Registrable Securities
have been sold pursuant to an effective resale registration statement under the Securities Act, as certificates, DRS Statements or electronic
book entry positions, as requested by a Holder; and
(m) take
all other reasonable actions necessary to expedite and facilitate the disposition by the Holders of the Registrable Securities pursuant
to the Registration Statement.
4. Suspension
of Offers and Sales. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind
described in Sections 2(c)(ii) or 3(f) hereof or of the commencement of a Blackout Period, such Holder shall discontinue the disposition
of Registrable Securities included in the Registration Statement until such Holder’s receipt of the copies of the supplemented
or amended prospectus contemplated by Sections 2(c)(ii) or 3(f) hereof or notice of the end of the Blackout Period, and, if so directed
by the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies (including, without limitation,
any and all drafts), other than permanent file copies, then in such Holder’s possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
5. Registration
Expenses. The Company shall pay all expenses in connection with any registration obligation provided herein, including, without limitation,
all registration, filing, stock exchange fees, printing expenses, all fees and expenses of complying with applicable securities laws,
the reasonable fees and expenses, not to exceed $10,000 of one special counsel to the selling Holders and the fees and disbursements
of counsel for the Company and of its independent accountants; provided, that, in any registration, each party shall pay for its own
underwriting discounts and commissions and transfer taxes. Except as provided in this Section 5 and Section 8, the Company shall not
be responsible for the expenses of any attorney or other advisor employed by a Holder.
6. Assignment
of Rights. The rights under this Agreement shall be automatically assignable by the Holders to any transferee of all or any portion
of such Holder’s Registrable Securities if: (i) the Holder agrees in writing with the transferee or assignee to assign such rights,
and a copy of such agreement is furnished to the Company promptly after such assignment; (ii) the Company is, within a reasonable time
after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b)
the securities with respect to which such registration rights are being transferred or assigned and (iii) immediately following such
transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act
and applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii)
of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein.
7. Information
by Holder. A Holder with Registrable Securities included in any registration shall furnish to the Company (and any managing underwriter(s),
where applicable) such information regarding itself, the Registrable Securities held by it, the intended method of disposition of such
securities, and such other information as shall be required in order to comply with any applicable law or regulation in connection with
the registration of such Holder’s Registrable Securities or any qualification or compliance with respect to such Holder’s
Registrable Securities and referred to in this Agreement. A form of Selling Stockholder Questionnaire is attached as Exhibit H
to the Subscription Package.
8. Indemnification.
(a) In
the event of the offer and sale of Registrable Securities under the Securities Act, the Company shall, and hereby does, indemnify and
hold harmless, to the fullest extent permitted by law, each Holder, its directors, officers, partners, each other person who participates
as an underwriter in the offering or sale of such securities, and each other person, if any, who controls or is under common control
with such Holder or any such underwriter within the meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, and expenses to which the Holder or any such director, officer, partner or underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, or any other federal or state law, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are
based upon (1) in the case of any registration statement prepared and filed by the Company under which Registrable Securities were registered
under the Securities Act, if such registration statement contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading or (2) in the case of any preliminary prospectus,
final prospectus or summary prospectus contained in such registration statement, or any amendment or supplement thereto, if such preliminary
prospectus, final prospectus or summary prospectus includes an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, or any violation
by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with this Agreement; and the Company shall reimburse the Holder, and
each such director, officer, partner, underwriter and controlling person for any legal or any other expenses reasonably and actually
incurred by them in connection with investigating, defending or settling any such loss, claim, damage, liability, action or proceeding;
provided, that such indemnity agreement found in this Section 8(a) shall in no event exceed the net proceeds from the Offering received
by the Company; and provided further, that the Company shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) such Holder’s failure
to comply with the prospectus delivery requirements of the Securities Act, (ii) such Holder’s breach of its obligations under Section
4, or (iii) an untrue statement in or omission from such registration statement, or any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, in reliance upon and in conformity with information furnished in writing to the Company
by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use
therein. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holders, or
any such director, officer, partner, underwriter or controlling person and shall survive the transfer of such shares by the Holder.
(b) As
a condition to including Registrable Securities in any registration statement filed pursuant to this Agreement, each Holder agrees to
be bound by the terms of this Section 8 and to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its
directors and officers, and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director or officer or controlling
person may become subject under the Securities Act, the Exchange Act, or any other federal or state law, to the extent arising out of
or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act, (y)
such Holder’s breach of its obligations under Section 4, or (z) (1) in the case of any registration statement prepared and filed
by the Company under which Registrable Securities were registered under the Securities Act, if such registration statement contained
an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements
therein not misleading or (2) in the case of any preliminary prospectus, final prospectus or summary prospectus contained in such registration
statement, or any amendment or supplement thereto, such preliminary prospectus, final prospectus or summary prospectus includes an untrue
statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading, to the extent, but only to the extent, that such untrue statements or omissions referred
to in (z)(1) or (z)(2) above are in reliance upon and in conformity with information furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution
of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use therein. Each Holder’s
obligation to indemnify shall be individual, not joint and several, and in no event shall the liability of any selling Holder hereunder
be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) Promptly
after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in this
Section (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such action; provided, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section, except to the
extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against
an indemnified party, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof, unless in such indemnified party’s reasonable judgment
a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the
defenses thereof or the indemnifying party fails to defend such claim in a diligent manner. If, in such indemnified party’s reasonable
judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption
of the defenses thereof, the indemnified party (together with all other indemnified parties that may be represented without conflict
by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying
party. No indemnifying party shall be liable for any settlement of any action or proceeding effected without its consent. No indemnifying
party shall, without the consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed),
consent to entry of any judgment or enter into any settlement, unless such consent to entry of judgment or settlement includes as an
unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation. Notwithstanding anything to the contrary set forth herein, and without limiting any of the rights set forth
above, in any event any party shall have the right to retain, at its own expense, counsel with respect to the defense of a claim.
(d) If
an indemnifying party does not or is not permitted to assume the defense of an action pursuant to Section 8(c) or in the case of the
expense reimbursement obligation set forth in Sections 8(a) and 8(b), the indemnification required by Sections 8(a) and 8(b) shall be
made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills received or expenses,
losses, damages, or liabilities are incurred provided that the indemnifying party is provided appropriate documentation.
(e) If
the indemnification provided for in Sections 8(a) and 8(b) is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall (i) contribute to the amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense as is appropriate to reflect the proportionate relative fault of the indemnifying party on the one
hand and the indemnified party on the other (determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission relates to information supplied by the indemnifying party or the indemnified party and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission), or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law or provides a lesser sum to the indemnified party than
the amount hereinafter calculated, not only the proportionate relative fault of the indemnifying party and the indemnified party, but
also the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other, as well as any
other relevant equitable considerations. No indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation.
9. Rule
144. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that
may at any time permit the Holders to sell the Registrable Securities to the public without registration, during the Effectiveness Period,
the Company agrees to use commercially reasonable efforts to: (i) to make and keep public information available as those terms are understood
in Rule 144, (ii) to file with the SEC in a timely manner all reports and other documents required to be filed by an issuer of securities
registered under the Securities Act or the Exchange Act pursuant to Rule 144, (iii) as long as any Holder owns any Registrable Securities,
to furnish in writing upon such Holder’s request a written statement by the Company that it has complied with the reporting requirements
of Rule 144 and of the Securities Act and the Exchange Act, and to furnish to such Holder a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the Company as may be reasonably requested in availing such Holder
of any rule or regulation of the SEC permitting the selling of any such Registrable Securities without registration, (iv) with respect
to the sale of any Registrable Securities by a Holder pursuant to Rule 144 and subject to Holder providing necessary documentation to
meet the requirements of such rule, to promptly furnish, without any charge to such Holder, a written legal opinion of its counsel to
facilitate such sale and, if necessary, instruct its transfer agent in writing that it may rely on said written legal opinion of counsel
with respect to said sale and (v) undertake any additional actions commercially necessary to maintain the availability of Rule 144.
10. Independent
Nature of Each Purchaser’s Obligations and Rights. The obligations of each Purchaser under this Agreement are several and not
joint with the obligations of any other Purchaser, and each Purchaser shall not be responsible in any way for the performance of the
obligations of any other Purchaser under this Agreement. Nothing contained herein and no action taken by any Purchaser pursuant hereto,
shall be deemed to constitute such Purchasers as a partnership, an association, a joint venture, or any other kind of entity, or create
a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation
the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in
any proceeding for such purpose.
11. Miscellaneous.
(a) Governing
Law. All 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 jurisdictions) that would cause the application of the laws of any jurisdictions other than the State
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 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.
(b) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including
recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree
that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions
of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be adequate.
(c) Successors
and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors,
permitted transferees and assignees, executors and administrators of the parties hereto.
(d) No
Inconsistent Agreements. The Company has not entered, as of the date hereof, and shall not enter, on or after the date of this Agreement,
into any agreement with respect to its securities that would have the effect of impairing the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof.
(e) Entire
Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects
hereof.
(f) Notices,
etc. All notices or other communications which are required or permitted under this Agreement shall be in writing and sufficient
if delivered by hand, by facsimile transmission, by registered or certified mail, postage pre-paid, by electronic mail, or by courier
or overnight carrier, to the persons at the addresses set forth below (or at such other address as may be provided hereunder), and shall
be deemed to have been delivered as of the date so delivered:
If
to the Company to:
Lucid
Diagnostics Inc.
360
Madison Avenue, 25th Floor
New
York, New York 10017
Attention:
Lishan Aklog, M.D., Chairman and Chief Executive Officer
E-mail:
la@luciddx.com
With
a copy (which shall not constitute notice) to:
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue, 44th Floor
New
York, New York 10174
Attention:
Eric Schwartz
E-mail:
eschwartz@graubard.com
If
to the Purchasers:
To
each Purchaser at the address set forth on the omnibus signature page or at such other address as any party shall have furnished to the
Company in writing.
(g) Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement, shall impair any such right, power or remedy of such Holder nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar breach or default thereunder occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any Holder of any breach or default under this Agreement, or any waiver on
the part of any Holder of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any holder, shall
be cumulative and not alternative.
(h) Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing
such counterparts, and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile
transmission or electronic transmission via .PDF file, such signature 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 facsimile or electronic signature page were
an original thereof.
(i) Severability.
In the case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(j) Amendments.
The provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be
waived, with and only with an agreement or consent in writing signed by the Company and the Majority Holders. The Purchasers acknowledge
that by the operation of this Section, the Majority Holders may have the right and power to diminish or eliminate all rights of the Holders
under this Agreement.
(k) Omnibus
Signature Page. This Agreement is intended to be read and construed in conjunction with the Subscription Agreement. Accordingly,
pursuant to the terms and conditions of this Agreement and the Subscription Agreement, it is hereby agreed that the execution by the
Purchaser of the Omnibus Signature Page to Subscription Agreement and Registration Rights Agreement (attached as Exhibit F to
the Subscription Package), in the place set forth therein, shall constitute agreement to be bound by the terms and conditions hereof
and the terms and conditions of this Agreement and the Subscription Agreement, with the same effect as if each of such separate but related
agreements were separately signed. The Company shall separately sign both this Agreement and the Subscription Agreement.
This
Registration Rights Agreement is hereby executed as of the date first above written.
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LUCID
DIAGNOSTICS INC. |
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EACH
PURCHASER’S OMNIBUS SIGNATURE PAGE THAT IS DELIVERED IN CONNECTION WITH THE OFFERING SHALL CONSTITUTE SUCH PURCHASER’S SIGNATURE
TO THIS REGISTRATION RIGHTS AGREEMENT.
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