As
filed with the Securities and Exchange Commission on February 2, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Genelux
Corporation
(Exact
name of registrant as specified in its charter)
| Delaware |
|
77-0583529 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S. Employer
Identification
Number) |
2625
Townsgate Road, Suite 230
Westlake
Village, CA 91361
(805)
267-9889
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
Thomas
Zindrick, J.D.
President
and Chief Executive Officer
Genelux
Corporation
2625
Townsgate Road, Suite 230
Westlake
Village, California 91361
(805)
267-9889
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Jason L. Kent
Christine S. Kim
Cooley LLP
10265 Science Center Drive
San
Diego, California 92121
(858) 550-6000
From
time to time after the effective date of this Registration Statement
(Approximate
date of commencement of proposed sale to the public)
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Securities and Exchange Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
| |
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 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
registration statement contains:
| ● |
a
base prospectus, which covers the offering, issuance and sale of up to $300,000,000 in the aggregate of our common
stock, preferred stock, debt securities and/or warrants from time to time in one or more offerings; and |
| ● |
a
sales agreement prospectus, which covers the offering, issuance and sale by us of up to a maximum aggregate offering price of $100,000,000
of our common stock that may be issued and sold from time to time under a Sales Agreement with Guggenheim Securities, LLC (the “Sales
Agreement”). |
The
base prospectus immediately follows this explanatory note. The specific terms of any other securities to be offered pursuant to the base
prospectus will be specified in one or more prospectus supplements to the base prospectus. The sales agreement prospectus immediately
follows the base prospectus. The $100,000,000 of common stock that may be offered, issued and sold under the sales agreement prospectus
is included in the $300,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination
of the Sales Agreement, any portion of the $100,000,000 included in the sales agreement prospectus that is not sold pursuant to the Sales
Agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and
if no shares are sold under the Sales Agreement, the full $100,000,000 of securities may be sold in other offerings pursuant to the base
prospectus and a corresponding prospectus supplement.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell
these securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED FEBRUARY 2, 2024
PROSPECTUS
$300,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
From
time to time, we may offer up to $300,000,000 of any combination of shares of our common stock, shares of our preferred stock, debt securities
and warrants to purchase any of such securities, in one or more offerings as described in this prospectus. We may also offer securities
as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including any
applicable antidilution provisions.
This
prospectus provides a general description of the securities we may offer. Each time we offer securities, we will provide specific terms
of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or
change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and
any related free writing prospectus, as well as any documents incorporated by reference, before you invest in any of the securities being
offered.
This
prospectus may not be used to consummate a sale of any securities unless accompanied by a prospectus supplement.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “GNLX.” On February 1, 2024, the last reported
sales price of our common stock was $10.57 per share. The applicable prospectus supplement will contain information, where applicable,
as to any other listing on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by
the applicable prospectus supplement.
We
may sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers,
on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan
of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which
this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts or options
to purchase additional securities will be set forth in a prospectus supplement. The price to the public of such securities and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
We
are an “emerging growth company” as defined by the Jumpstart Our Business Startups Act of 2012, and as such, have elected
to comply with reduced public company reporting requirements for this prospectus and the documents incorporated by reference herein and
may elect to comply with reduced public company reporting requirements in future filings.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
“Risk Factors” on page 5 of this prospectus as well as those contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this prospectus is , 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing
a “shelf” registration process. Under this shelf registration process, we may offer and sell any combination of the securities
described in this prospectus in one or more offerings up to a total aggregate offering price of $300,000,000. This prospectus provides
you with a general description of the securities we may offer.
Each
time we offer and sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize
to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated
by reference into this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus
supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. You should
read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated
herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before investing
in any of the securities offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither
we, nor any agent, underwriter or dealer has authorized any person to give any information or to make any representation other than those
contained or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus
prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any
related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free
writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing
prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated
by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any
applicable prospectus supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where
You Can Find More Information.”
PROSPECTUS
SUMMARY
This
summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in
making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related
free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained
in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that
are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this
prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Unless
the context requires otherwise, references in this prospectus to “Genelux,” “the company,” “we,”
“us,” “our” or similar terms refer to Genelux Corporation.
Company
Overview
Genelux
is a late clinical-stage biopharmaceutical company focused on developing a pipeline of next-generation oncolytic viral immunotherapies
for patients suffering from aggressive and/or difficult-to-treat solid tumor types. Our most advanced product candidate, Olvi-Vec, is
a proprietary, modified strain of the vaccinia virus, a stable DNA virus with a large engineering capacity. We have met the preestablished
endpoint for our Phase 2 clinical trial of Olvi-Vec in Platinum-Resistant/Refractory Ovarian Cancer. Employing our CHOICE platform, we
have developed an extensive library of isolated and engineered oncolytic vaccinia virus immunotherapeutic product candidates. These provide
potential utility in multiple tumor types in both the monotherapy and combination therapy settings, via physician-preferred administration
techniques, including regional (e.g., intraperitoneal), local and systemic (e.g., intravenous) delivery routes. Informed by our CHOICE
platform and supported by extensive clinical and pre-clinical data, we believe we have the capacity to develop a pipeline of treatment
options to address high unmet medical needs for those patients with insignificant or unsatisfactory responses to standard-of-care therapies,
including chemotherapies. From this library, we selected Olvi-Vec, which we believe has the potential to exhibit anti-tumor properties,
including potent oncolytic properties (tumor cell lysis) and to activate both the innate and adaptive arms of the immune system, to produce
favorable changes within the tumor microenvironment. The personalized and multi-modal immune activation generated by Olvi-Vec is designed
with the goal to yield clinically-meaningful anti-tumor responses to virus treatment alone and in combination with other existing treatment
modalities. We believe Olvi-Vec currently represents the most advanced clinical development program throughout the oncolytic treatment
landscape involving the non-local administration (e.g., non-intratumorally) of viral immunotherapies.
Since
inception, our operations have focused on organizing and staffing our company, business planning, raising capital, acquiring and developing
our technology, establishing our intellectual property portfolio, identifying potential product candidates and undertaking preclinical
and clinical studies and manufacturing. We do not have any products approved for sale and have not generated any revenue from product
sales.
Implications
of Being an Emerging Growth Company and Smaller Reporting Company
We
are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We may take
advantage of certain exemptions from various public company reporting requirements, including not being required to have our internal
control over financial reporting audited by our independent registered public accounting firm under Section 404 of the Sarbanes-Oxley
Act of 2002, or the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy
statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute
payments. We may take advantage of these exemptions until December 31, 2028 or until we are no longer an “emerging growth company,”
whichever is earlier. We will cease to be an emerging growth company prior to the end of such period if certain earlier events occur,
including if we become a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended, or the Exchange Act, our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion of non-convertible debt
in any three-year period.
Under
the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards
apply to private companies. We have elected to use this extended transition period under the JOBS Act until the earlier of the date we
(i) are no longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided
in the JOBS Act.
We
are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company
even after we are no longer an emerging growth company, which would allow us to take advantage of many of the same exemptions available
to emerging growth companies, including not being required to comply with the auditor attestation requirements of Section 404 of the
Sarbanes-Oxley Act and reduced disclosure obligations regarding executive compensation. We will be able to take advantage of the scaled
disclosures available to smaller reporting companies for so long as our voting and non-voting common stock held by non-affiliates is
less than $250.0 million measured on the last business day of our second fiscal quarter, or our annual revenue is less than $100.0 million
during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is less than $700.0
million measured on the last business day of our second fiscal quarter.
Corporate
Information
We
were incorporated in Delaware in September 2001. Our principal executive offices are located at 2625
Townsgate Road, Suite 230, Westlake Village, California 91361, and our telephone number is (805)
267-9889. Our corporate website address is www.genelux.com. Our website and the information contained on, or that can be accessed
through, our website will not be deemed to be incorporated by reference in, and are not considered part of, this prospectus. Our design
logo, “Genelux,” and our other registered and common law trade names, trademarks and service marks are the property of Genelux
Corporation.
The
Securities We May Offer
We
may offer shares of our common stock, shares of our preferred stock, various series of debt securities and warrants to purchase any of
such securities, up to a total aggregate offering price of $300,000,000 from time to time in one or more offerings under this prospectus,
together with any applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by
market conditions at the time of the relevant offering. This prospectus provides you with a general description of the securities we
may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| ● | designation
or classification; |
| ● | aggregate
principal amount or aggregate offering price; |
| ● | maturity,
if applicable; |
| ● | original
issue discount, if any; |
| ● | rates
and times of payment of interest or dividends, if any; |
| ● | redemption,
conversion, exchange or sinking fund terms, if any; |
| ● | conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to or
adjustments in the conversion or exchange prices or rates and in the securities or other
property receivable upon conversion or exchange; |
| ● | restrictive
covenants, if any; |
| ● | voting
or other rights, if any; and |
| ● | important
U.S. federal income tax considerations. |
The
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change
information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free
writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of
the registration statement of which this prospectus is a part.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
We
may sell the securities directly to investors or through underwriters, dealers or agents. We, and our underwriters or agents, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents,
we will include in the applicable prospectus supplement:
| ● | the
names of those underwriters or agents; |
| ● | applicable
fees, discounts and commissions to be paid to them; |
| ● | details
regarding options to purchase additional securities, if any; and |
| ● | the
estimated net proceeds to us. |
Common
Stock. We may issue shares of our common stock from time to time. Holders of our common stock are entitled to one vote per share
for the election of directors and on all other matters that require stockholder approval. Subject to any preferential rights of any then
outstanding preferred stock, in the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to
share ratably in the assets remaining after payment of liabilities and the liquidation preferences of any then outstanding preferred
stock. Our common stock does not carry any preemptive rights enabling a holder to subscribe for, or receive shares of, our common stock
or any other securities convertible into shares of common stock, or any redemption rights.
Preferred
Stock. We may issue shares of our preferred stock from time to time, in one or more series. Under our amended and restated certificate
of incorporation, our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares
of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to
fix the rights, preferences and privileges of the shares of each wholly unissued series and any qualifications, limitations or restrictions
thereon and to increase or decrease the number of shares of any such series, but not below the number of shares of such series then outstanding.
If
we sell any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights of such
series of preferred stock, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating
to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred
stock that we are offering before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus
supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock
being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt
Securities. We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as
senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt.
The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the
instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into our common stock
or preferred stock. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
The
debt securities will be issued under one or more documents called indentures, which are contracts between us and a national banking association
or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge
you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you)
related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities.
A form of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures
and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration
statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants.
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue
warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or
separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however,
to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to
the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the
terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered
have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental warrant agreements and
forms of warrant certificates will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated
by reference from reports that we file with the SEC.
We
will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant
agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the
prospectus supplement relating to the particular series of warrants being offered.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading
“Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar
headings in our Annual Report on Form 10-K for the year ended December 31, 2022 and Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2023, June 30, 2023 and September 30, 2023, as updated by our subsequent annual, quarterly and other reports and documents
that are incorporated by reference into this prospectus and the applicable prospectus supplement, before deciding whether to purchase
any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors
could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment
in our securities, and the occurrence of any of these risks might cause you to lose all or part of your investment. Additional risks
not presently known to us or that we currently believe are immaterial may also significantly impair our business operations. Please also
read carefully the section below titled “Special Note Regarding Forward-Looking Statements.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement
contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act,
and Section 21E of the Exchange Act, and the Private Securities Litigation Reform Act of 1995, as amended, that involve substantial risks
and uncertainties. All statements other than statements of historical facts contained in this prospectus, including statements regarding
our future results of operations and financial position, business strategy, research and development
costs; the anticipated timing, costs and conduct of our clinical trials for our only product candidate, Olvi-Vec; the timing and likelihood
of regulatory filings and approvals for Olvi-Vec; our ability to commercialize Olvi-Vec, if approved; the pricing and reimbursement of
Olvi-Vec, if approved; the potential benefits of strategic collaborations and our ability to enter into strategic arrangements; the timing
and likelihood of success, plans and objectives of management for future operations; the potential to develop future product candidates
and future results of anticipated product development efforts; the scope of protection we
are able to establish and maintain for intellectual property rights covering Olvi-Vec; developments
and projections relating to our competitors and our industry, including competing products; and
our expected future financing needs, are forward-looking statements. These statements involve known and unknown risks, uncertainties
and other important factors that may cause our actual results, performance or achievements to be materially different from any future
results, performance or achievements expressed or implied by the forward-looking statements.
In
some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,”
“expect,” “plan,” “anticipate,” “could,” “intend,” “target,”
“project,” “contemplates,” “believes,” “estimates,” “predicts,” “potential”
or “continue” or the negative of these terms or other similar expressions. The forward-looking statements in this prospectus
are only predictions. We have based these forward-looking statements largely on our current expectations and projections about future
events and financial trends that we believe may affect our business, financial condition and results of operations. These forward-looking
statements speak only as of the date of this prospectus or the documents incorporated by reference in this prospectus, as applicable,
and are subject to a number of risks, uncertainties and assumptions described under the sections in this prospectus and the documents
incorporated by reference herein entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and elsewhere in this prospectus and the documents incorporated by reference herein. Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events
and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially
from those projected in the forward-looking statements. Moreover, we operate in an evolving environment. New risk factors and uncertainties
may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required
by applicable law, we undertake no obligation to publicly update or revise any forward-looking statements contained herein, whether as
a result of any new information, future events, changed circumstances or otherwise. You should, however, review the factors and risks
we describe in the reports we will file from time to time with the SEC after the date of this prospectus. See the section titled “Where
You Can Find More Information.”
In
addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These
statements are based on information available to us as of the date of this prospectus, and while we believe such information provides
a reasonable basis for these statements, such information may be limited or incomplete. Our statements should not be read to indicate
that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are
inherently uncertain, and you are cautioned not to unduly rely on these statements.
USE
OF PROCEEDS
We
will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Except as described in
any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently intend to
use the net proceeds from the sale of the securities offered hereby to fund the development and commercialization of our programs and
for general corporate purposes, including working capital, operating expenses and capital expenditures. We may also use a portion of
the net proceeds to acquire or invest in businesses and products that are complementary to our own, although we have no current plans,
commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth in the applicable prospectus
supplement or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to
the prospectus supplement or free writing prospectus. We intend to invest the net proceeds to us from the sale of securities offered
hereby that are not used as described above in short-term, investment-grade, interest-bearing instruments.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description summarizes the terms of our capital stock. Because it is only a summary, it does not contain all the information
that may be important to you. For a complete description of the matters set forth in this “Description of Capital Stock,”
you should refer to our amended and restated certificate of incorporation and amended and restated bylaws, which are included as exhibits
to the registration statement of which this prospectus forms a part, and to the applicable provisions of the General Corporation Law
of the State of Delaware, or the DGCL.
Our
amended and restated certificate of incorporation authorizes us to issue 200,000,000 shares of common stock, par value $0.001 per share,
and 10,000,000 shares of preferred stock, par value $0.001 per share.
Common
Stock
Voting
Rights
Our
common stock is entitled to one vote per share on any matter that is submitted to a vote of our stockholders. Our amended and restated
certificate of incorporation does not provide for cumulative voting for the election of directors. Our amended and restated certificate
of incorporation establishes a classified board of directors that is divided into three classes with staggered three-year terms. Only
the directors in one class will be subject to election by a plurality of the votes cast at each annual meeting of our stockholders, with
the directors in the other classes continuing for the remainder of their respective three-year terms.
Economic
Rights
Except
as otherwise expressly provided in our amended and restated certificate of incorporation or required by applicable law, all shares of
common stock have the same rights and privileges and rank equally, share ratably and be identical in all respects for all matters, including
those described below.
Dividends.
Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock are entitled
to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and then
only at the times and in the amounts that our board of directors may determine.
Liquidation
Rights. On our liquidation, dissolution or winding-up, the holders of our common stock will be entitled to share equally, identically
and ratably in all assets remaining after the payment of any liabilities, liquidation preferences and accrued or declared but unpaid
dividends, if any, with respect to any outstanding preferred stock, unless a different treatment is approved by the affirmative vote
of the holders of a majority of the outstanding shares of such affected class, voting separately as a class.
No
Preemptive or Similar Rights
The
holders of shares of our common stock are not entitled to preemptive rights and are not subject to conversion, redemption or sinking
fund provisions.
Preferred
Stock
Undesignated
Preferred Stock
Under
our amended and restated certificate of incorporation, our board of directors has the authority, without further action by the stockholders,
to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be
included in each such series, to fix the rights, preferences and privileges of the shares of each wholly unissued series and any qualifications,
limitations or restrictions thereon and to increase or decrease the number of shares of any such series, but not below the number of
shares of such series then outstanding.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting
power or other rights of the holders of the common stock. The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing
a change in our control that may otherwise benefit holders of our common stock and may adversely affect the market price of the common
stock and the voting and other rights of the holders of common stock. We have no current plans to issue any shares of preferred stock.
Additional
Series of Preferred Stock
We
will incorporate by reference as an exhibit to the registration statement, which includes this prospectus, the form of any certificate
of designation that describes the terms of the series of preferred stock we are offering. This description and the applicable prospectus
supplement will include:
| ● | the
title and stated value; |
| ● | the
number of shares authorized; |
| ● | the
liquidation preference per share; |
| ● | the
dividend rate, period and payment date, and method of calculation for dividends; |
| ● | whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| ● | the
procedures for any auction and remarketing, if any; |
| ● | the
provisions for a sinking fund, if any; |
| ● | the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights; |
| ● | any
listing of the preferred stock on any securities exchange or market; |
| ● | whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion
price, or how it will be calculated, and the conversion period; |
| ● | whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price, or how it will be calculated, and the exchange period; |
| ● | voting
rights, if any, of the preferred stock; |
| ● | preemptive
rights, if any; |
| ● | restrictions
on transfer, sale or other assignment, if any; |
| ● | whether
interests in the preferred stock will be represented by depositary shares; |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the preferred
stock; |
| ● | the
relative ranking and preferences of the preferred stock as to dividend rights and rights
if we liquidate, dissolve or wind up our affairs; |
| ● | any
limitations on issuance of any class or series of preferred stock ranking senior to or on
a parity with the series of preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred
stock. |
When
we issue shares of preferred stock under this prospectus, the shares will fully be paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
Piggyback
Registration Rights
We
are party to an investor rights agreement, dated January 8, 2010, or the Rights Agreement, which provides for the grant of piggyback
registration rights to AbbVie Inc., formerly Abbott Laboratories, or AbbVie, and the other holders of registrable securities set forth
therein. In the event that we propose to register any of our securities under the Securities Act,
either for our own account or for the account of other security holders, AbbVie and the other holders of registrable securities will
be entitled to include their shares in such registration, subject to certain exceptions. As a result, whenever we propose to file a registration
statement under the Securities Act, other than a registration (i) relating solely to employee benefit plans, (ii) relating to solely
a Rule 145 transaction, or (iii) on Form S-4 or any similar short-form registration statement, the holders of these shares are entitled
to notice of the registration and have the right to include their shares in the registration, subject to limitations that the underwriters
may impose on the number of shares included in the offering. The piggyback registration rights will not terminate until such time
as AbbVie ceases to hold securities representing 1% or more of our outstanding securities.
Anti-Takeover
Provisions
The
provisions of Delaware law, our amended and restated certificate of incorporation and amended and restated bylaws, which are summarized
below, may have the effect of delaying, deferring or discouraging another person from acquiring control of our company. They are also
designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that
the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages
of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.
Certificate
of Incorporation and Bylaws
Because
our stockholders do not have cumulative voting rights, stockholders holding a majority of the voting power of our shares of common stock
will be able to elect all of our directors. Our amended and restated certificate of incorporation and amended and restated bylaws provide
that stockholders may only take action at a duly called meeting of stockholders. A special meeting of stockholders may be called by a
majority of our board of directors, the chair of our board of directors, or our chief executive officer or president. Our amended and
restated bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders,
including proposed nominations of persons for election to our board of directors. In
accordance with our amended and restated certificate of incorporation, our board of directors is divided into three classes with staggered
three-year terms.
The
foregoing provisions make it more difficult for another party to obtain control of us by replacing our board of directors. Since our
board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing
stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes
it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success
of any attempt to change our control.
These
provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may
be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares
and may have the effect of deterring hostile takeovers or delaying changes in our control or management. As a consequence, these provisions
may also inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts.
Section
203 of the General Corporation Law of the State of Delaware
We
are subject to Section 203 of the DGCL, which prohibits a Delaware corporation from engaging in
any business combination with any interested stockholder for a period of three years after the date that such stockholder became an interested
stockholder, subject to certain exceptions.
Choice
of Forum
Our
amended and restated certificate of incorporation and amended and restated bylaws provide that the Court of Chancery of the State of
Delaware will be the sole and exclusive forum for the following types of actions or proceedings under Delaware statutory or common law:
(i) any derivative action or proceeding brought on our behalf; (ii) any action or proceeding asserting a claim of breach of a fiduciary
duty owed by any of our current or former directors, officers, or other employees to us or our stockholders; (iii) any action or proceeding
asserting a claim against us or any of our current or former directors, officers, or other employees, arising out of or pursuant to any
provision of the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws; (iv) any action or proceeding
to interpret, apply, enforce, or determine the validity of our amended and restated certificate of incorporation or our amended and restated
bylaws; (v) any action or proceeding as to which the DGCL confers jurisdiction to the Court of Chancery of the State of Delaware; and
(vi) any action asserting a claim against us or any of our directors, officers, or other employees governed by the internal affairs doctrine,
in all cases to the fullest extent permitted by law and subject to the court’s having personal jurisdiction over the indispensable
parties named as defendants. These provisions would not apply to suits brought to enforce a duty or liability created by the Exchange
Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all such Securities
Act actions. Accordingly, both state and federal courts have jurisdiction to entertain such claims. To prevent having to litigate claims
in multiple jurisdictions and the threat of inconsistent or contrary rulings by different courts, among other considerations, our amended
and restated certificate of incorporation and our amended and restated bylaws further provide that the federal district courts of the
United States of America will be the exclusive forum for resolving any complaint asserting a cause or causes of action arising under
the Securities Act, including all causes of action asserted against any defendant to such complaint. For the avoidance of doubt, this
provision is intended to benefit and may be enforced by us, our officers and directors, the underwriters to any offering giving rise
to such complaint, and any other professional entity whose profession gives authority to a statement made by that person or entity and
who has prepared or certified any part of the documents underlying this offering. While the Delaware courts have determined that such
choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than those designated
in the exclusive forum provisions. In such instance, we would expect to vigorously assert the validity and enforceability of the exclusive
forum provisions of our amended and restated certificate of incorporation and our amended and restated bylaws.
These
exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes
with us or our directors, officers, or other employees and may discourage these types of lawsuits. Furthermore, the enforceability of
similar choice of forum provisions in other companies’ certificates of incorporation or bylaws has been challenged in legal proceedings,
and it is possible that a court could find these types of provisions to be inapplicable or unenforceable. We note that investors cannot
waive compliance with the federal securities laws and the rules and regulations thereunder.
Exchange
Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “GNLX.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC. The transfer
agent and registrar’s address is 6201 15th Avenue, Brooklyn, New York 11219.
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement.
The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context
requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of
a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an
exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a
part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants
or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued
with OID will be described in more detail in any applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
| ● | the
title of the series of debt securities; |
| ● | any
limit upon the aggregate principal amount that may be issued; |
| ● | the
maturity date or dates; |
| ● | the
form of the debt securities of the series; |
| ● | the
applicability of any guarantees; |
| ● | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any
combination thereof, and the terms of any subordination; |
| ● | if
the price (expressed as a percentage of the aggregate principal amount thereof) at which
such debt securities will be issued is a price other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| ● | the
interest rate or rates, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and the
regular record dates for interest payment dates or the method for determining such dates; |
| ● | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if
applicable, the date or dates after which, or the period or periods during which, and the
price or prices at which, we may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms of those redemption provisions; |
| ● | the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at
the holder’s option to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable; |
| ● | the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| ● | any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series; |
| ● | whether
the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities; and the
depositary for such global security or securities; |
| ● | if
applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange; |
| ● | if
other than the full principal amount thereof, the portion of the principal amount of debt
securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof; |
| ● | additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant; |
| ● | additions
to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable; |
| ● | additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance; |
| ● | additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions
to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| ● | the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; |
| ● | whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made; |
| ● | the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any and principal amounts of the debt securities of the series to any holder
that is not a “United States person” for federal tax purposes; |
| ● | any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, any other additions or changes in the provisions of the indenture, and any terms
that may be required by us or advisable under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
| ● | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose; |
| ● | if
we fail to pay the principal of, or premium, if any, on any series of debt securities as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration
or otherwise, or in any payment required by any sinking or analogous fund established with
respect to such series; provided, however, that a valid extension of the maturity of such
debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any; |
| ● | if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive written notice of such failure, requiring
the same to be remedied and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of the outstanding debt
securities of the applicable series; and |
| ● | if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
| ● | the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and |
| ● | subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to the holders not involved
in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
| ● | the
holder has given written notice to the trustee of a continuing event of default with respect
to that series; |
| ● | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request; |
| ● | such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and |
| ● | the
trustee does not institute the proceeding and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
| ● | to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of
any series; |
| ● | to
comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;” |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities; |
| ● | to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities,
to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default or to surrender any
right or power conferred upon us in the indenture; |
| ● | to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set
forth in the indenture; |
| ● | to
make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| ● | to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
| ● | extending
the fixed maturity of any debt securities of any series; |
| ● | reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or |
| ● | reducing
the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
| ● | register
the transfer or exchange of debt securities of the series; |
| ● | replace
stolen, lost or mutilated debt securities of the series; |
| ● | pay
principal of and premium and interest on any debt securities of the series; |
| ● | maintain
paying agencies; |
| ● | hold
monies for payment in trust; |
| ● | recover
excess money held by the trustee; |
| ● | compensate
and indemnify the trustee; and |
| ● | appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that
series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to
any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
| ● | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or |
| ● | register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist
of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be issued
independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement and may be attached
to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the applicable
prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may
differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this
prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered as exhibits
to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement, if any,
including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering. The following
summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference
to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of warrants that we
may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant certificates
that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants being offered, including, to the extent
applicable:
| ● | the
title of such securities; |
| ● | the
offering price or prices and aggregate number of warrants offered; |
| ● | the
currency or currencies for which the warrants may be purchased; |
| ● | if
applicable, the designation and terms of the securities with which the warrants are issued
and the number of warrants issued with each such security or each principal amount of such
security; |
| ● | if
applicable, the date on and after which the warrants and the related securities will be separately
transferable; |
| ● | if
applicable, the minimum or maximum amount of such warrants which may be exercised at any
one time; |
| ● | in
the case of warrants to purchase common stock, the number of shares of common stock purchasable
upon the exercise of one warrant and the price at which, and the currency in which, these
shares may be purchased upon such exercise; |
| ● | in
the case of warrants to purchase preferred stock, the number of shares of preferred stock
purchasable upon the exercise of one warrant and the price at which, and the currency in
which, these shares may be purchased upon such exercise; |
| ● | in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at which, and currency in which, this
principal amount of debt securities may be purchased upon such exercise; |
| ● | the
effect of any merger, consolidation, sale or other disposition of our business on the warrant
agreements and the warrants; |
| ● | the
terms of any rights to redeem or call the warrants; |
| ● | the
terms of any rights to force the exercise of the warrants; |
| ● | any
provisions for changes to or adjustments in the exercise price or number of securities issuable
upon exercise of the warrants; |
| ● | the
dates on which the right to exercise the warrants will commence and expire; |
| ● | the
manner in which the warrant agreements and warrants may be modified; |
| ● | a
discussion of any material or special U.S. federal income tax consequences of holding or
exercising the warrants; |
| ● | the
terms of the securities issuable upon exercise of the warrants; and |
| ● | any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
| ● | in
the case of warrants to purchase common stock, the right to receive dividends, if any, or,
payments upon our liquidation, dissolution or winding up or to exercise voting rights, if
any; |
| ● | in
the case of warrants to purchase preferred stock, the right to receive dividends, if any,
or, payments upon our liquidation, dissolution or winding up or to exercise voting rights,
if any; or |
| ● | in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise or
to enforce covenants in the applicable indenture, |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant
agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the
warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver
to the warrant agent in connection with the exercise of the warrant.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute
arising under or related to the warrants or warrant agreements, will be governed by and construed in accordance with the laws of the
State of New York.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or
depositary maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities.
We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own
names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors
in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which
are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so
under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest
through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders,
of the securities.
Street
Name Holders
We
may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities
in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of
a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those
securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other
financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or
depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers
who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders
of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any
other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because
we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even
if that legal holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders
but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we
would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact
the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented
by one or more global securities or in street name, you should check with your own institution to find out:
| ● | how
it handles securities payments and notices; |
| ● | whether
it imposes fees or charges; |
| ● | how
it would handle a request for the holders’ consent, if ever required; |
| ● | whether
and how you can instruct it to send you securities registered in your own name so you can
be a holder, if that is permitted in the future; |
| ● | how
it would exercise rights under the securities if there were a default or other event triggering
the need for holders to act to protect their interests; and |
| ● | if
the securities are in book-entry form, how the depositary’s rules and procedures will
affect these matters. |
Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary.
Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry
form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under “—Special Situations When a Global
Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner
and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that
in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by
a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special
Considerations for Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect
holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
| ● | an
investor cannot cause the securities to be registered in his or her name, and cannot obtain
non-global certificates for his or her interest in the securities, except in the special
situations we describe below; |
| ● | an
investor will be an indirect holder and must look to his or her own bank or broker for payments
on the securities and protection of his or her legal rights relating to the securities, as
we describe above; |
| ● | an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form; |
| ● | an
investor may not be able to pledge his or her interest in the global security in circumstances
where certificates representing the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
| ● | the
depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in the global security; |
| ● | we
and any applicable trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in the global security, nor will we or
any applicable trustee supervise the depositary in any way; |
| ● | the
depositary may, and we understand that DTC will, require that those who purchase and sell
interests in the global security within its book-entry system use immediately available funds,
and your broker or bank may require you to do so as well; and |
| ● | financial
institutions that participate in the depositary’s book-entry system, and through which
an investor holds its interest in the global security, may also have their own policies affecting
payments, notices and other matters relating to the securities. |
There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for
the actions of any of those intermediaries.
Special
Situations When a Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to
the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to
their own names, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless
we provide otherwise in the applicable prospectus supplement, a global security will terminate when the following special situations
occur:
| ● | if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act as
depositary within 90 days; |
| ● | if
we notify any applicable trustee that we wish to terminate that global security; or |
| ● | if
an event of default has occurred with regard to securities represented by that global security
and has not been cured or waived. |
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular
series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and neither
we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities covered hereby from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated
transactions, block trades or a combination of these methods. A distribution of these securities offered by this prospectus may also
be effected through the issuance of derivative securities, including, without limitation, warrants. We may sell the securities to or
through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute securities from time to time
in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
We
may also sell equity securities covered by this registration statement in an “at the market offering” as defined in Rule
415(a)(4) under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at
other than a fixed price, either:
| ● | on
or through the facilities of The Nasdaq Capital Market or any other securities exchange or
quotation or trading service on which such securities may be listed, quoted or traded at
the time of sale; and/or |
| ● | to
or through a market maker other than on The Nasdaq Capital Market or such other securities
exchanges or quotation or trading services. |
Such
at-the-market offerings, if any, may be conducted by underwriters acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of the securities, including, to the extent applicable:
| ● | the
name or names of any underwriters, dealers or agents, if any; |
| ● | the
purchase price of the securities and the proceeds we will receive from the sale; |
| ● | any
options pursuant to which underwriters may purchase additional securities from us; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
public offering price; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without
a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any option to purchase additional securities. Any public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale
of securities, and we will describe any commissions and other compensation we will pay the agent in the prospectus supplement. Unless
the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
We
may provide agents and underwriters with indemnification against civil liabilities related to this offering, including liabilities under
the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All
securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any agents or
underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time
without notice. We cannot guarantee the liquidity of the trading markets for any securities. There is currently no market for any of
the offered securities, other than our common stock which is listed on The Nasdaq Capital Market. We have no current plans for listing
of the preferred stock, debt securities or warrants on any securities exchange or quotation system; any such listing with respect to
any particular preferred stock, debt securities or warrants will be described in the applicable prospectus supplement or other offering
materials, as the case may be.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Rule
103 of Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by
the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the
securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any
agents and underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions
in the securities on The Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing
of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume
and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price
not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, certain legal matters in connection with the offering and the validity of
the securities offered by this prospectus, and any prospectus supplement thereto, will be passed upon by Cooley LLP, New York, New York.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable
prospectus supplement.
EXPERTS
Weinberg
& Company, P.A., independent registered public accounting firm, has audited our consolidated financial statements included in our
Annual Report on Form 10-K for the year ended December 31, 2022, as set forth in their report (which contains an explanatory paragraph
describing conditions that raise substantial doubt about our ability to continue as a going concern as described in Note 1 to the consolidated
financial statements), which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our consolidated
financial statements are incorporated by reference in reliance on Weinberg & Company, P.A.’s report, given on their authority
as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities
we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the
registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different information.
We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information
in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the securities offered by this prospectus.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy statements and other information regarding issuers that file electronically with the SEC, including Genelux Corporation.
The address of the SEC website is www.sec.gov.
Copies
of certain information filed by us with the SEC are also available on our website at www.genelux.com. Information contained in or accessible
through our website does not constitute a part of this prospectus and is not incorporated by reference into this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus.
Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this
prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus.
We also incorporate by reference into this prospectus the documents listed below and any future filings made by us with the SEC (other
than Current Reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items and other portions of documents that are furnished, but not filed, pursuant to applicable rules promulgated by
the SEC) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing and concurrent
effectiveness of the registration statement but prior to the termination of all offerings covered by this prospectus:
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC
on March 29, 2023 (as amended on May 1, 2023); |
| ● | our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and
September 30, 2023, filed with the SEC on May 15, 2023, August 14, 2023, and November 14, 2023, respectively; |
| ● | our
Current Reports on Form 8-K (other than information furnished rather than filed) filed with
the SEC on January 30, 2023, June 2, 2023, June 12, 2023, June 27, 2023, July 14, 2023, July 19, 2023, August 28, 2023, September 14, 2023 and November 24, 2023; and |
| ● | the
description of our common stock in our registration statement on Form 8-A filed with the
SEC on January 23, 2023, including any amendments or reports filed for the purpose of updating
such description. |
We
also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the termination of the offering. These documents
include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well
as proxy statements.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request,
a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits which are specifically incorporated by reference into such documents. You should direct any requests for documents
by writing us at 2625 Townsgate Road, Suite 230, Westlake Village, California 91361, Attn: Secretary, or by telephoning us at (805) 267-9889.
Any
statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed
to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently
filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the U.S. Securities
and Exchange Commission declares our registration statement effective. This preliminary prospectus is not an offer to sell these securities
and we are not soliciting offers to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED FEBRUARY 2, 2024
PROSPECTUS
$100,000,000
Common
Stock
We
have entered into a sales agreement with Guggenheim Securities, LLC, or Guggenheim Securities, dated February 2, 2024, or the
Sales Agreement, relating to the sale of shares of our common stock, par value $0.001 per share, offered by this prospectus. In accordance
with the terms of the Sales Agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $100,000,000
through Guggenheim Securities, acting as our agent.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “GNLX.” On February 1, 2024, the last reported sale
price of our common stock was $10.57 per share.
Sales
of our common stock, if any, under this prospectus may be made in sales deemed to be in negotiated transactions or transactions that
are deemed “at-the-market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or
the Securities Act. Guggenheim Securities is not required to sell any specific amount of our common stock, but will act as our sales
agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between
Guggenheim Securities and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The
compensation to Guggenheim Securities for sales of common stock sold pursuant to the Sales Agreement will be an amount equal to
3.0% of the gross proceeds of any shares of common stock sold thereunder. See “Plan of Distribution” beginning on
page S-9 for additional information regarding the compensation to be paid to Guggenheim Securities. In connection with the sale of the
common stock on our behalf, Guggenheim Securities will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation of Guggenheim Securities will be deemed to be underwriting commissions or discounts. We have also agreed to
provide indemnification and contribution to Guggenheim Securities with respect to certain liabilities, including liabilities under the
Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act.
Investing
in our common stock involves a high degree of risk. Before making an investment decision, please read the information under the heading
“Risk Factors” beginning on page S-5 of this prospectus and under similar headings in the other documents
that are incorporated by reference into this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Guggenheim
Securities
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described
in our base prospectus included in the shelf registration statement in one or more offerings up to a total aggregate offering price of
$300,000,000. The $100,000,000 of common stock that may be offered, issued and sold under this prospectus is included in the $300,000,000
of securities that may be offered, issued and sold by us pursuant to our shelf registration statement.
This
prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully
read this prospectus, together with the information incorporated by reference as described under the headings “Where You Can Find
More Information” and “Incorporation of Certain Information by Reference” in this prospectus. These documents contain
important information that you should consider when making your investment decision.
This
prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated
by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one
hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the SEC before
the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these
documents is inconsistent with a statement in another document having a later date (for example, a document incorporated by reference
into this prospectus), the statement in the document having the later date modifies or supersedes the earlier statement.
We
have not, and Guggenheim Securities has not, authorized anyone to provide you with information different from that which is contained
in or incorporated by reference in this prospectus and in any free writing prospectus that we may authorize for use in connection with
this offering. No one is making offers to sell or seeking offers to buy our common stock in any jurisdiction where the offer or sale
is not permitted. You should assume that the information contained in this prospectus is accurate as of the date on the front cover of
this prospectus only and that any information we have incorporated by reference is accurate only as of the date given in the document
incorporated by reference, as applicable, regardless of the time of delivery of this prospectus, any related free writing prospectus,
or any sale of our common stock. Our business, financial condition, results of operations and prospects may have changed since those
dates. We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to
any document that is incorporated by reference into this prospectus were made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus contains references to our trademarks and to trademarks belonging to other entities. Solely for convenience, trademarks and
trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear without the ® or ™
symbols, but such references are not intended to indicate, in any way, that their respective owners will not assert, to the fullest extent
under applicable law, their rights thereto. We do not intend our use or display of other companies’ trade names or trademarks to
imply a relationship with, or endorsement or sponsorship of us by, any other companies.
PROSPECTUS
SUMMARY
This
following summary highlights information about us, this offering and selected information contained elsewhere in or incorporated by reference
into this prospectus. This summary is not complete and does not contain all of the information that you need to consider before deciding
whether to invest in our common stock. For a more complete understanding of our company and this offering, we encourage you to read and
consider carefully the more detailed information in this prospectus, including the information incorporated by reference in this prospectus,
and the information included in any free writing prospectus that we have authorized for use in connection with this offering, including
the information under the heading “Risk Factors” in this prospectus on page S-5 and in the documents incorporated by reference
into this prospectus. Unless the context requires otherwise, references in this prospectus to “Genelux,” “we,”
“us,” “the Company” and “our” refer to Genelux Corporation.
Company
Overview
Genelux
is a late clinical-stage biopharmaceutical company focused on developing a pipeline of next-generation oncolytic viral immunotherapies
for patients suffering from aggressive and/or difficult-to-treat solid tumor types. Our most advanced product candidate, Olvi-Vec, is
a proprietary, modified strain of the vaccinia virus, a stable DNA virus with a large engineering capacity. We have met the preestablished
endpoint for our Phase 2 clinical trial of Olvi-Vec in Platinum-Resistant/Refractory Ovarian Cancer. Employing our CHOICE platform, we
have developed an extensive library of isolated and engineered oncolytic vaccinia virus immunotherapeutic product candidates. These provide
potential utility in multiple tumor types in both the monotherapy and combination therapy settings, via physician-preferred administration
techniques, including regional (e.g., intraperitoneal), local and systemic (e.g., intravenous) delivery routes. Informed by our CHOICE
platform and supported by extensive clinical and pre-clinical data, we believe we have the capacity to develop a pipeline of treatment
options to address high unmet medical needs for those patients with insignificant or unsatisfactory responses to standard-of-care therapies,
including chemotherapies. From this library, we selected Olvi-Vec, which we believe has the potential to exhibit anti-tumor properties,
including potent oncolytic properties (tumor cell lysis) and to activate both the innate and adaptive arms of the immune system, to produce
favorable changes within the tumor microenvironment. The personalized and multi-modal immune activation generated by Olvi-Vec is designed
with the goal to yield clinically-meaningful anti-tumor responses to virus treatment alone and in combination with other existing treatment
modalities. We believe Olvi-Vec currently represents the most advanced clinical development program throughout the oncolytic treatment
landscape involving the non-local administration (e.g., non-intratumorally) of viral immunotherapies.
Since
inception, our operations have focused on organizing and staffing our company, business planning, raising capital, acquiring and developing
our technology, establishing our intellectual property portfolio, identifying potential product candidates and undertaking preclinical
and clinical studies and manufacturing. We do not have any products approved for sale and have not generated any revenue from product
sales.
Financial
Update
While
we have not finalized our financial closing procedures as of and for the year ended December 31, 2023, we expect to report that we had
approximately $23.2 million of cash, cash equivalents, and short-term investments. This amount is unaudited and preliminary and is
subject to completion of financial closing procedures. As a result, this amount may differ from the amount that will be reflected in
our consolidated financial statements as of and for the year ended December 31, 2023. Our consolidated financial statements for the year
ended December 31, 2023 will not be available until after this offering is completed, and consequently will not be available to you prior
to investing in this offering.
The
preliminary financial data included in this prospectus has been prepared by, and is the responsibility of, management. Weinberg &
Company, P.A., has not audited, reviewed, examined, compiled, nor applied agreed-upon procedures with respect to the preliminary financial
data. Accordingly, Weinberg & Company, P.A., does not express an opinion or any other form of assurance with respect thereto.
Corporate
Information
We
were incorporated in Delaware in September 2001. Our principal executive offices are located at 2625
Townsgate Road, Suite 230, Westlake Village, California 91361, and our telephone number is (805)
267-9889. Our corporate website address is www.genelux.com. Our website and the information contained on, or that can be accessed
through, our website will not be deemed to be incorporated by reference in, and are not considered part of, this prospectus. Our design
logo, “Genelux,” and our other registered and common law trade names, trademarks and service marks are the property of Genelux
Corporation.
Implications
of Being an Emerging Growth Company and Smaller Reporting Company
We
are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We may take
advantage of certain exemptions from various public company reporting requirements, including not being required to have our internal
control over financial reporting audited by our independent registered public accounting firm under Section 404 of the Sarbanes-Oxley
Act of 2002, or the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy
statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute
payments. We may take advantage of these exemptions until December 31, 2028 or until we are no longer an “emerging growth company,”
whichever is earlier. We will cease to be an emerging growth company prior to the end of such period if certain earlier events occur,
including if we become a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended, or Exchange Act, our annual gross revenues exceed $1,235,000,000 or we issue more than $1,000,000,000 of non-convertible debt
in any three-year period.
Under
the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards
apply to private companies. We have elected to use this extended transition period under the JOBS Act until the earlier of the date we
(i) are no longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided
in the JOBS Act.
We
are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company
even after we are no longer an emerging growth company, which would allow us to take advantage of many of the same exemptions available
to emerging growth companies, including not being required to comply with the auditor attestation requirements of Section 404 of the
Sarbanes-Oxley Act and reduced disclosure obligations regarding executive compensation. We will be able to take advantage of the scaled
disclosures available to smaller reporting companies for so long as our voting and non-voting common stock held by non-affiliates is
less than $250,000,000 measured on the last business day of our second fiscal quarter, or our annual revenue is less than $100,000,000
during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is less than $700,000,000
measured on the last business day of our second fiscal quarter.
The
Offering
| Common
stock offered by us |
|
Shares
of our common stock having an aggregate offering price of up to $100,000,000. |
| |
|
|
| Common
stock to be outstanding after this offering |
|
Up
to 35,118,643 shares, assuming sales of 9,460,737 shares of our common stock in this offering at an offering price
of $10.57 per share, which was the closing price of our common stock on The Nasdaq Capital Market on February 1, 2024. The
actual number of shares issued will vary depending on the sales price under this offering. |
| |
|
|
| Plan
of Distribution |
|
“At
the market offering” that may be made from time to time through our sales agent, Guggenheim Securities. See “Plan of
Distribution.” |
| |
|
|
| Use
of Proceeds |
|
We
intend to use the net proceeds from this offering for general corporate purposes, which may include research and development expenses,
clinical trial expenses, capital expenditures and working capital. See “Use of Proceeds.” |
| |
|
|
| Risk
Factors |
|
You
should read the “Risk Factors” section of this prospectus and in the documents incorporated by reference in this prospectus
for a discussion of factors to consider before deciding to purchase shares of our common stock. |
| |
|
|
Nasdaq
Capital Market
symbol
|
|
“GNLX”
|
The
number of shares of our common stock to be outstanding after this offering set forth above is based on 26,657,906 shares of common
stock outstanding, as of September 30, 2023, and excludes, as of such date:
| |
● |
5,097,654
shares issuable upon the exercise of outstanding stock options at a weighted-average exercise
price of $9.61 per share;
|
| |
|
|
| |
● |
688,574
shares issuable upon the exercise of outstanding warrants at a weighted-average exercise price of $7.94 per share; |
| |
|
|
| |
● |
2,026,862
shares of our common stock reserved for future
issuance under our 2022 Equity Incentive Plan, or 2022 Plan, as well as any future automatic annual increases in the number of shares
of common stock reserved for issuance under our 2022 Plan; |
| |
|
|
| |
● |
700,000
shares of our common stock reserved for issuance under our 2022 Employee Stock Purchase Plan, or ESPP, as well as any future automatic
annual increases in the number of shares of common stock reserved for future issuance under our ESPP; and |
| |
|
|
| |
● |
555,700
shares of our common stock reserved for issuance
under the 2023 Inducement Plan. |
Unless
otherwise indicated, all information in this prospectus assumes no exercise of the outstanding options or warrants described above.
RISK
FACTORS
Investing
in our common stock involves a high degree of risk. You should carefully review the risks and uncertainties described below and under
the section titled “Risk Factors” in our most recent Annual Report on Form 10-K, as updated by our quarterly, annual and
other reports and documents that we have filed or subsequently file that are incorporated by reference into this prospectus, before deciding
whether to purchase any common stock in this offering. Each of the risk factors could adversely affect our business, operating results
and financial condition, as well as adversely affect the value of an investment in our common stock, and the occurrence of any of these
risks might cause you to lose all or part of your investment. Additional risks not presently known to us or that we currently believe
are immaterial may also significantly impair our business operations. Please also carefully read the section below titled “Special
Note Regarding Forward-Looking Statements.”
Risks
Related to This Offering
We
have broad discretion over the use of proceeds we receive in this offering and may not use them effectively.
Our
management has broad discretion to use the net proceeds we receive in this offering to fund our operations and could spend these funds
in ways that do not improve our results of operations or enhance the value of our common stock. The failure by our management to apply
these funds effectively could result in financial losses that could have an adverse effect on our business, cause the price of our common
stock to decline and delay the development of our product candidates. Pending their use to fund operations, we may invest any net proceeds
from this offering in a manner that does not produce income or that loses value. See the section titled “Use of Proceeds.”
If
you purchase shares of our common stock in this offering, you may experience immediate and substantial dilution in the net tangible book
value of your shares.
The
price per share of our common stock being offered may be higher than the net tangible book value per share of our common stock outstanding
prior to this offering. Assuming that an aggregate of 9,460,737 shares of our common stock are sold at a price of $10.57
per share, the last reported sale price of our common stock on the Nasdaq Capital Market on February 1, 2024, for aggregate gross proceeds
of approximately $100,000,000 in this offering, and after deducting commissions and estimated aggregate offering expenses payable by
us, you will suffer immediate and substantial dilution of $7.23 per share, representing the difference between the pro forma as
adjusted net tangible book value per share of our common stock as of September 30, 2023 after giving effect to this offering at the assumed
offering price. Please see the section entitled “Dilution” on page S-8 of this prospectus for a more detailed illustration
of the dilution you would incur if you participate in this offering.
The
actual number of shares we will issue in this offering, at any one time or in total, is uncertain.
Subject
to certain limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver a placement notice
to Guggenheim Securities at any time throughout the term of the Sales Agreement. The number of shares that are sold by Guggenheim Securities
in this offering after delivering a placement notice will fluctuate based on the market price of the shares of common stock during the
sales period and limits we set with Guggenheim Securities. Because the price per share of each share sold will fluctuate based on the
market price of our common stock during the sales period, it is not possible at this stage to predict the number of shares that will
be ultimately issued.
The
common stock offered hereby will be sold in “at the market offerings” and investors who buy shares at different times will
likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and accordingly may experience different levels
of dilution and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing,
prices and number of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions
we may place in any applicable placement notice, there is no minimum or maximum sales price for shares to be sold in this offering. Investors
may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the
prices they paid.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents we have filed with the SEC that are incorporated by reference contain forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act, and the Private Securities Litigation Reform Act
of 1995, as amended, that involve substantial risks and uncertainties. All statements other than statements of historical facts contained
in this prospectus, including statements regarding our future results of operations and financial
position, business strategy, research and development costs; the anticipated timing, costs and conduct of our clinical trials for our
only product candidate, Olvi-Vec; the timing and likelihood of regulatory filings and approvals for Olvi-Vec; our ability to commercialize
Olvi-Vec, if approved; the pricing and reimbursement of Olvi-Vec, if approved; the potential benefits of strategic collaborations and
our ability to enter into strategic arrangements; the timing and likelihood of success, plans and objectives of management for future
operations; the potential to develop future product candidates and future results of anticipated
product development efforts; the scope of protection we are able to establish and maintain for intellectual property rights covering
Olvi-Vec; developments and projections relating to our competitors and our industry, including
competing products; and our expected future financing needs, are forward-looking statements.
These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance
or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking
statements.
In
some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,”
“expect,” “plan,” “anticipate,” “could,” “intend,” “target,”
“project,” “contemplates,” “believes,” “estimates,” “predicts,” “potential”
or “continue” or the negative of these terms or other similar expressions. The forward-looking statements in this prospectus
are only predictions. We have based these forward-looking statements largely on our current expectations and projections about future
events and financial trends that we believe may affect our business, financial condition and results of operations. These forward-looking
statements speak only as of the date of this prospectus or the documents incorporated by reference in this prospectus, as applicable,
and are subject to a number of risks, uncertainties and assumptions described under the sections in this prospectus and the documents
incorporated by reference herein entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and elsewhere in this prospectus and the documents incorporated by reference herein. Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events
and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially
from those projected in the forward-looking statements. Moreover, we operate in an evolving environment. New risk factors and uncertainties
may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required
by applicable law, we undertake no obligation to publicly update or revise any forward-looking statements contained herein, whether as
a result of any new information, future events, changed circumstances or otherwise. You should, however, review the factors and risks
we describe in the reports we will file from time to time with the SEC after the date of this prospectus. See the section titled “Where
You Can Find More Information.”
In
addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These
statements are based on information available to us as of the date of this prospectus, and while we believe such information provides
a reasonable basis for these statements, such information may be limited or incomplete. Our statements should not be read to indicate
that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are
inherently uncertain, and you are cautioned not to unduly rely on these statements.
USE
OF PROCEEDS
We
may issue and sell shares of our common stock having aggregate sales proceeds of up to $100,000,000 from time to time. Because there
is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and
proceeds to us, if any, are not determinable at this time. There can be no assurance that we will sell any shares in this offering as
a source of financing.
We
intend to use the net proceeds, if any, from this offering for general corporate purposes, which may include research and development
expenses, clinical trial expenses, capital expenditures and working capital. We may also use a portion of the net proceeds to in-license,
invest in or acquire businesses, assets or technologies that we believe are complementary to our own; although, we have no current plans,
commitments or agreements with respect to any acquisitions. Pending these uses, we intend to invest the net proceeds in short- and intermediate-term,
interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed obligations of the U.S. government.
We will retain broad discretion in determining how we will allocate the net proceeds from the sale of common stock under this prospectus.
DILUTION
If
you invest in our common stock, your interest would be diluted immediately to the extent of any difference between the public offering
price and the as adjusted net tangible book value per share of our common stock after this offering.
As
of September 30, 2023, we had a historical net tangible book value of approximately $24.0 million, or $0.90 per share, based on 26,657,906
shares of common stock outstanding as of such date. “Net tangible book value” is total tangible assets minus liabilities.
“Net tangible book value per share” is net tangible book value divided by the total number of shares of common stock outstanding.
After
giving effect to the sale of $100,000,000 of shares of common stock in this offering at an assumed offering price of $10.57 per
share (the last reported sale price of our common stock on The Nasdaq Capital Market on February 1, 2024), and after deducting offering
commissions and estimated expenses payable by us, our as adjusted net tangible book value as of September 30, 2023, would have been approximately
$120.6 million, or $3.34 per share of common stock. This represents an immediate increase in net tangible book value of
$2.44 per share to our existing stockholders and an immediate dilution in net tangible book value of $7.23 per share to
investors participating in this offering. The following table illustrates this dilution per share to investors participating in this
offering:
| Assumed offering price per share | |
| | | |
$ | 10.57 | |
| Net tangible book value per share as of September 30, 2023 | |
$ | 0.90 | | |
| | |
| Increase in net tangible
book value per share attributable to new investors in offering | |
$ | 2.44 | | |
| | |
| As adjusted net tangible book value per share
after giving effect to the offering | |
| | | |
$ | 3.34 | |
| Dilution per share to new investors | |
| | | |
$ | 7.23 | |
The
table above assumes for illustrative purposes that an aggregate of 9,460,737 shares of our common stock are sold in this offering
at a price of $10.57 per share, for aggregate gross proceeds of $100,000,000. The shares subject to the Sales Agreement with Guggenheim
Securities and offered by this prospectus are being sold from time to time at various prices. An increase of $1.00 per share in the price
at which the shares are sold from the assumed offering price of $10.57 per share shown in the table above, assuming all of our
common stock in the aggregate amount of $100,000,000 in this offering is sold at that price, would increase our adjusted net tangible
book value per share after the offering to $3.42 per share and would increase the dilution in net tangible book value per share
to new investors in this offering to $8.15 per share, after deducting commissions and estimated aggregate offering expenses payable
by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $10.57 per share
shown in the table above, assuming all of our common stock in the aggregate amount of $100,000,000 is sold in this offering at that price,
would decrease our adjusted net tangible book value per share after the offering to $3.25 per share and would decrease the dilution
in net tangible book value per share to new investors in this offering to $6.32 per share, after deducting commissions and estimated
aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
The
above discussion and table are based on 26,657,906 shares of common stock outstanding, as of September 30, 2023, and excludes, as of
such date:
| |
● |
5,097,654
shares issuable upon the exercise of outstanding stock options at a weighted average exercise price of $9.61 per share; |
| |
|
|
| |
● |
688,574
shares issuable upon the exercise of outstanding warrants at a weighted-average exercise price of $7.94 per share; |
| |
|
|
| |
● |
2,026,862
shares of our common stock reserved for future
issuance under our 2022 Plan, as well as any future automatic annual increases in the number of shares of common stock reserved for
issuance under our 2022 Plan; |
| |
|
|
| |
● |
700,000
shares of our common stock reserved for issuance under our ESPP, as well as any future automatic annual increases in the number of
shares of common stock reserved for future issuance under our ESPP; and |
| |
|
|
| |
● |
555,700
shares of our common stock reserved for issuance
under the 2023 Inducement Plan. |
To
the extent that outstanding options have been or may be exercised or other shares issued, investors purchasing our common stock in this
offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic
considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital
is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution
to our stockholders.
PLAN
OF DISTRIBUTION
We
have entered into the Sales Agreement with Guggenheim Securities, under which we may issue and sell shares of common stock having an
aggregate offering price of up to $100,000,000 from time to time through Guggenheim Securities as our sales agent. Sales of shares of
common stock, if any, under this prospectus will be by any method that is deemed to be an “at-the-market offering,” as defined
in Rule 415 under the Securities Act.
Guggenheim
Securities will offer shares of our common stock subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise
agreed upon by us and Guggenheim Securities. Subject to the terms and conditions of the Sales Agreement, Guggenheim Securities will use
its commercially reasonable efforts consistent with its normal trading and sales practices to sell on our behalf all the shares of common
stock requested to be sold by us. We may instruct Guggenheim Securities not to sell shares of common stock if the sales cannot be effected
at or above the price designated by us in any such instruction. Guggenheim Securities or we may suspend the offering of shares of our
common stock being made through Guggenheim Securities under the Sales Agreement upon proper notice to the other party. Guggenheim Securities
and we each have the right, by giving written notice as specified in the Sales Agreement, to terminate the Sales Agreement in each party’s
sole discretion at any time.
The
aggregate compensation payable to Guggenheim Securities as sales agent will be an amount equal to 3.0% of the gross sales price of any
shares sold through it pursuant to the Sales Agreement. We have also agreed to reimburse Guggenheim Securities up to $75,000 for
the out-of-pocket reasonable fees and disbursements of its legal counsel incurred in connection with executing the Sales Agreement
and up to $25,000 for the out-of-pocket reasonable fees and disbursements of its legal counsel incurred from time to time in connection
with the delivery of certain amended financial information thereunder. We estimate that the total expenses of the offering payable
by us, excluding commissions payable to Guggenheim Securities under the Sales Agreement, will be approximately $365,000.
The
remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental or self-regulatory
organization in connection with the sales, will equal our net proceeds for the sale of such shares of common stock.
Guggenheim
Securities will provide written confirmation to us following the close of trading on the Nasdaq Capital Market on each day in which shares
of common stock are sold through it as sales agent under the Sales Agreement. Each confirmation will include the number of shares of
common stock sold through it as sales agent on that day, the volume weighted average price of the shares of common stock sold and the
net proceeds to us.
Settlement
for sales of shares of common stock will occur, unless the parties agree otherwise, on the second business day that is also a trading
day following the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds
to be received in an escrow, trust or similar arrangement. We will report, through Quarterly Reports on Form 10-Q and Annual Reports
on Form 10-K, at least quarterly the number of shares of common stock sold through Guggenheim Securities under the Sales Agreement and
the net proceeds to us in connection with the sales of shares of common stock during the relevant period.
In
connection with the sales of shares of common stock on our behalf, Guggenheim Securities will be deemed to be an “underwriter”
within the meaning of the Securities Act, and the compensation paid to Guggenheim Securities will be deemed to be underwriting commissions
or discounts. We have agreed in the Sales Agreement to provide indemnification and contribution to Guggenheim Securities against certain
liabilities, including liabilities under the Securities Act. As sales agent, Guggenheim Securities will not engage in any transactions
that stabilize our common stock.
Our
common stock is listed and traded on The Nasdaq Capital Market under the symbol “GNLX.” Equiniti
Trust Company, LLC serves as the transfer agent and registrar for our common stock.
Guggenheim
Securities and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services
for us for which services they have received, and may in the future receive, customary fees.
LEGAL
MATTERS
The
validity of the common stock offered by this prospectus will be passed upon for us by Cooley LLP, New York, New York. Guggenheim Securities
is being represented in connection with this offering by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts.
EXPERTS
Weinberg
& Company, P.A., independent registered public accounting firm, has audited our consolidated financial statements included in our
Annual Report on Form 10-K for the year ended December 31, 2022, as set forth in their report (which contains an explanatory paragraph
describing conditions that raise substantial doubt about our ability to continue as a going concern as described in Note 1 to the consolidated
financial statements), which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our consolidated
financial statements are incorporated by reference in reliance on Weinberg & Company, P.A.’s report, given on their authority
as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
This
prospectus is part of a registration statement on Form S-3 we filed with the SEC. This prospectus does not contain all of the information
set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and
the common stock we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed
as a part of the registration statement.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy statements and other information regarding issuers that file electronically with the SEC, including our company. The address
of the SEC website is www.sec.gov.
We
maintain a website at www.genelux.com. Information contained in or accessible through our website does not constitute a part of this
prospectus and is not incorporated by reference in this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus.
Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this
prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus.
We also incorporate by reference into this prospectus the documents listed below and any future filings made by us with the SEC (other
than Current Reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items and other portions of documents that are furnished, but not filed, pursuant to applicable rules promulgated by
the SEC) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing and concurrent
effectiveness of the registration statement but prior to the termination of all offerings covered by this prospectus:
| |
● |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March
29, 2023 (as amended on May
1, 2023); |
| |
|
|
| |
●
|
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, filed with the SEC on May
15, 2023, August
14, 2023, and November
14, 2023, respectively; |
| |
|
|
| |
● |
our
Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January
30, 2023, June
2, 2023, June
12, 2023, June
27, 2023, July
14, 2023, July
19, 2023, August
28, 2023, September
14, 2023 and November
24, 2023; and |
| |
|
|
| |
● |
the
description of our common stock in our registration statement on Form
8-A filed with the SEC on January 23, 2023, including any amendments or reports filed for the purpose of updating such description. |
We
also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the termination of the offering. These documents
include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well
as proxy statements.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request,
a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits which are specifically incorporated by reference into such documents. You should direct any requests for documents
by writing us at 2625 Townsgate Road, Suite 230, Westlake Village, California 91361, Attn: Secretary, or by telephoning us at (805) 267-9889.
Any
statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed
to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently
filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
$100,000,000
Common
Stock
PROSPECTUS
Guggenheim
Securities
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection
with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
| SEC
registration fee | |
$ | 44,280 | |
| FINRA
filing fee | |
$ | 45,500 | |
| Accounting
fees and expenses | |
| *
| |
| Legal
fees and expenses | |
| *
| |
| Transfer
agent fees and expenses | |
| *
| |
| Trustee
fees and expenses | |
| *
| |
| Printing
and miscellaneous expenses | |
| *
| |
| Total | |
$ | *
| |
| * |
These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item
15. Indemnification of Directors and Officers
We
are incorporated under the laws of the State of Delaware. Section 145 of the DGCL empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending, or completed legal action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer,
employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding,
provided that such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s
best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may
indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification
is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his
duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation
must indemnify him against the expenses which such officer or director actually and reasonably incurred.
Our
amended and restated certificate of incorporation and amended and restated bylaws provide that we will indemnify our directors and officers
to the fullest extent permitted by Delaware law, except that no indemnification will be provided to a director, officer, employee, or
agent if the indemnification sought is in connection with a proceeding initiated by such person without the authorization of our board
of directors. The amended and restated bylaws also provide that the right of directors and officers to indemnification shall be a contract
right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the certificate
of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The amended and restated bylaws also
permit us to secure insurance on behalf of any officer, director, employee, or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the amended and restated bylaws would permit indemnification of any such liability.
Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except
for liability for any:
| |
● |
transaction from which the
director derives an improper personal benefit; |
| |
● |
act or omission not in good
faith or that involves intentional misconduct or a knowing violation of law; |
| |
● |
unlawful payment of dividends
or redemption of shares; or |
| |
● |
breach of a director’s
duty of loyalty to the corporation or its stockholders. |
Our
amended and restated certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending
any such action, suit or proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking, by
or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified by us.
Section
174 of the DGCL provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends
or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions
were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books
containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director
receives notice of the unlawful acts.
In
addition, we have entered into indemnification agreements with our directors and officers that require us, among other things, to indemnify
them against certain liabilities that may arise by reason of their status or service, so long as the indemnitee acted in good faith and
in a manner the indemnitee reasonably believed to be in or not opposed to the best interests of us, and, with respect to any criminal
action or proceeding, the indemnitee had no reasonable cause to believe his or her conduct was unlawful.
We
maintain insurance policies that indemnify our directors and officers against various liabilities arising under the Securities Act and
the Exchange Act that might be incurred by any director or officer in his capacity as such.
Item
16. Exhibits
Exhibit
Number |
|
Description
of Document |
| |
|
|
| 1.1* |
|
Form
of Underwriting Agreement. |
| |
|
|
| 1.2 |
|
Sales
Agreement, dated February 2, 2024, by and between the Registrant and Guggenheim Securities, LLC. |
| |
|
|
| 3.1 |
|
Amended
and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current
Report on Form 8-K (File No. 001-41599), filed with the SEC on January 30, 2023). |
| |
|
| 3.2 |
|
Amended
and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form
8-K (File No. 001-41599), filed with the SEC on January 30, 2023). |
| |
|
| 4.1 |
|
Form
of Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-1, as amended (File No. 333-265828), filed with the Commission on August 29, 2022). |
| |
|
| 4.2 |
|
Investors’
Rights Agreement, by and among the Registrant and AbbVie, Inc. and Aladar Szalay, Ph.D., dated January 2010 (incorporated herein
by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-265828), filed
with the Commission on June 24, 2022). |
| |
|
| 4.3 |
|
Form
of Warrant to Purchase Common Stock issued to WDC Fund I, dated September 2020 (incorporated herein by reference to Exhibit 4.3 to
the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-265828), filed with the Commission on June 24,
2022). |
| |
|
|
| 4.4 |
|
Agreement/Promissory
Note, by and among the registrant and Jillian and Curtis Helmer, dated April 2016, as amended (incorporated herein by reference to
Exhibit 4.4 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-265828), filed with the Commission
on June 24, 2022). |
| |
|
|
| 4.5 |
|
Form
of Umbrella Agreement Regarding Family Investments (incorporated herein by reference to Exhibit 4.5 to the Registrant’s Registration
Statement on Form S-1, as amended (File No. 333-265828), filed with the Commission on June 24, 2022). |
| |
|
|
| 4.6 |
|
Form
of Convertible Note Purchase Agreement under the Umbrella Agreement (incorporated herein by reference to Exhibit 4.6 to the Registrant’s
Registration Statement on Form S-1, as amended (File No. 333-265828), filed with the Commission on June 24, 2022). |
| |
|
|
| 4.7 |
|
Form
of Representative’s Warrant (incorporated herein by reference to Exhibit 4.7 to the
Registrant’s Registration Statement on Form S-1, as amended (File No. 333-265828),
filed with the Commission on September 19, 2022).
|
| |
|
|
| 4.9 |
|
Form
of Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.8 to the Registrant’s Quarterly Report on Form
10-Q (File No. 001-41599), filed with the SEC on May 15, 2023). |
| |
|
|
| 4.10 |
|
Amendment
to 2022 Unsecured Promissory Notes, by and among the Registrant and Existing Noteholders dated February 28, 2023 (incorporated by
reference to Exhibit 4.9 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-41599), filed with the SEC on May
15, 2023). |
| |
|
|
| 4.11 |
|
Letter
Agreement Amending the Umbrella Agreements, by and among the Registrant and Existing Noteholders
dated April 4, 2023 (incorporated by reference to Exhibit 4.10 to the Registrant’s
Quarterly Report on Form 10-Q (File No. 001-41599), filed with the SEC on May 15, 2023).
|
| |
|
|
| 4.12 |
|
Form
of Warrant to Purchase Common Stock issued on July 28, 2023 in connection with Converted
Convertible Notes Payable (incorporated by reference to Exhibit 4.3 to the Registrant’s
Quarterly Report on Form 10-Q (File No. 001-41599), filed with the SEC on August 14, 2023).
|
| |
|
|
| 4.13 |
|
Form
of Warrant to Purchase Common Stock issued on August 1, 2023 in connection with Converted
Convertible Notes Payable (incorporated by reference to Exhibit 4.4 to the Registrant’s
Quarterly Report on Form 10-Q (File No. 001-41599), filed with the SEC on August 14, 2023).
|
| |
|
|
| 4.14 |
|
Form
of Indenture, by and between the Registrant and one or more trustees to be named. |
| |
|
| 4.15* |
|
Form
of Certificate of Designation of Preferred Stock. |
| |
|
| 4.16* |
|
Form
of Debt Security. |
| |
|
| 4.17 |
|
Form of Common Stock Warrant Agreement and Warrant Certificate. |
| |
|
| 4.18 |
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate. |
| |
|
| 4.19 |
|
Form of Debt Securities Warrant Agreement and Warrant Certificate. |
| |
|
| 5.1 |
|
Opinion
of Cooley LLP. |
| |
|
| 23.1 |
|
Consent
of independent registered public accounting firm. |
| |
|
| 23.2 |
|
Consent
of Cooley LLP (included in Exhibit 5.1). |
| |
|
|
| 24.1 |
|
Power
of Attorney (included on signature page). |
| |
|
|
| 25.1** |
|
Statement
of Eligibility of Trustee under the Indenture. |
| |
|
|
| 107 |
|
Filing
Fee Table. |
| * | To
be filed by amendment or by a report filed under the Exchange Act and incorporated herein
by reference, if applicable. |
| ** | To
be filed, if applicable, in accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939, as amended, and Rule 5b-3 thereunder. |
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration
statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement or are contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this
registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
| (i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date. |
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(7)
That, for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed
as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant
to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the time
it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture
Act.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Westlake Village, State of California, on February 2, 2024.
| |
GENELUX
CORPORATION |
| |
|
|
| |
By: |
/s/
Thomas Zindrick, J.D |
| |
|
Thomas
Zindrick, J.D |
| |
|
President
and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas
Zindrick, J.D and Lourie Zak as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration
statement that is to be effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
/s/
Thomas Zindrick, J.D
|
|
President,
Chief Executive Officer and Chairman of the Board
|
|
February
2, 2024 |
| Thomas
Zindrick, J.D |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
/s/
Lourie Zak
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Chief
Financial Officer
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February
2, 2024 |
| Lourie
Zak |
|
(Principal
Financial and Accounting Officer) |
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/s/
Mary Mirabelli
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Director |
|
February
2, 2024 |
| Mary
Mirabelli |
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| |
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/s/
John Smither
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|
Director |
|
February
2, 2024 |
| John
Smither |
|
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|
| |
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/s/
James L. Tyree
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|
Director |
|
February
2, 2024 |
| James
L. Tyree |
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| |
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/s/
John Thomas, Ph.D.
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|
Director |
|
February
2, 2024 |
| John
Thomas, Ph.D. |
|
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|
Exhibit
1.2
Genelux
Corporation
Shares
of Common Stock
($0.001
par value per share)
SALES
AGREEMENT
February
2, 2024
Guggenheim
Securities, LLC
330
Madison Avenue
New
York, New York 10017
Ladies
and Gentlemen:
Genelux
Corporation, a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”)
with Guggenheim Securities, LLC (the “Agent”), as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through the Agent up to $100,000,000 of shares of common stock, $0.001 par
value per share, of the Company (the “Common Stock”), subject to the limitations set forth in Section 5(c)
(the “Placement Shares”). Notwithstanding anything to the contrary contained herein, the parties hereto agree
that compliance with the limitation set forth in this Section 1 on the aggregate gross sales price of Placement Shares that may be issued
and sold under this Agreement from time to time shall be the sole responsibility of the Company, and that the Agent shall have no obligation
in connection with such compliance. The issuance and sale of Placement Shares through the Agent will be effected pursuant to the Registration
Statement (as defined below) to be filed by the Company with the Securities and Exchange Commission (the “Commission”)
on February 2, 2024 and to be declared effective by the Commission, although nothing in this Agreement shall be construed as requiring
the Company to issue any Placement Shares.
The
Company has prepared and will file, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Securities Act”), with the Commission a registration statement on Form S-3,
including (a) a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”),
and (b) a prospectus specifically relating to the Placement Shares to be issued from time to time pursuant to this Agreement (the “Sales
Prospectus”) to the base prospectus included as part of such registration statement. The Company will furnish to the
Agent, for use by the Agent, copies of the Sales Prospectus included as part of such registration statement at the time it becomes effective,
as supplemented by any prospectus supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration
statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained
in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed
to be a part of such registration statement pursuant to Rule 430B or Rule 462(b) under the Securities Act, is herein called the “Registration
Statement.” The Sales Prospectus, including all documents incorporated therein by reference, included in the Registration
Statement, as it may be supplemented by any prospectus supplement, in the form in which the Sales Prospectus, as supplemented by any
prospectus supplement, if applicable, has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the
Securities Act, together with any “issuer free writing prospectus” (as used herein, as defined in Rule 433 under the Securities
Act (“Rule 433”)), relating to the Placement Shares that (i) is required to be filed with the Commission by
the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case, in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein
called the “Prospectus.”
Any
reference herein to the Registration Statement, the Prospectus or any issuer free writing prospectus shall be deemed to refer to and
include the documents, if any, that are or are deemed to be incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
the Prospectus or any issuer free writing prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the most-recent effective date of the Registration Statement, or the respective dates of the Prospectus or such issuer
free writing prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references to
the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to include the most recent copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System or, if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively, “EDGAR”).
2.
Placements. Each time that the Company wishes to issue and sell any Placement Shares through the Agent hereunder (each, a “Placement”),
it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) (each such notice, a “Placement
Notice”) containing the parameters in accordance with which it desires such Placement Shares to be sold, which at a minimum
shall include the maximum number or amount of Placement Shares to be sold, the time period during which sales are requested to be made,
any limitation on the number or amount of Placement Shares that may be sold in any one Trading Day (as defined in Section 3) and any
minimum price below which sales may not be made, a form of which containing such minimum sales parameters is attached hereto as Schedule
1. The Placement Notice must originate from one of the individuals authorized to act on behalf of the Company and set forth on
Schedule 2 (with a copy to each of the other individuals from the Company listed on such Schedule 2), and
shall be addressed to each of the recipients from the Agent set forth on Schedule 2, as such Schedule 2 may
be updated by either party from time to time by sending a written notice containing a revised Schedule 2 to the other party
in the manner provided in Section 12 (including by email correspondence to each of the individuals of the Company set forth on Schedule
2, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than
via auto-reply). The Placement Notice shall be effective upon receipt by the Agent unless and until (i) in accordance with the notice
requirements set forth in Section 4, the Agent declines to accept the terms contained therein for any reason, in its sole discretion,
within two Trading Days of the date the Agent receives the Placement Notice, (ii) in accordance with the notice requirements set forth
in Section 4, the Agent suspends sales under the Placement Notice for any reason in its sole discretion, (iii) the entire amount of the
Placement Shares has been sold pursuant to this Agreement, (iv) in accordance with the notice requirements set forth in Section 4, the
Company suspends sales under or terminates the Placement Notice for any reason in its sole discretion, (v) the Company issues a subsequent
Placement Notice and explicitly indicates that its parameters supersede those contained in the earlier dated Placement Notice or (vi)
this Agreement has been terminated pursuant to the provisions of Section 11. The amount of any discount, commission or other compensation
to be paid by the Company to the Agent in connection with the sale of the Placement Shares effected through the Agent shall be calculated
in accordance with the terms set forth in Schedule 3. It is expressly acknowledged and agreed that neither the Company
nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers
a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control with respect to the matters covered thereby.
3.
Sale of Placement Shares by the Agent. On the basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, including Section 5(c), upon the Agent’s acceptance of the terms of a Placement Notice as
provided in Section 2, and unless the sale of the Placement Shares described therein has been declined, suspended or otherwise terminated
in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Capital Market (“Nasdaq”) to sell such Placement Shares up to the number or amount
specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent will provide written confirmation to the
Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt
of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) no later
than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number or amount of Placement Shares sold on such Trading Day, the volume-weighted average price of
the Placement Shares sold and the Net Proceeds (as defined below) payable to the Company. Unless otherwise specified by the Company in
a Placement Notice, the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 of the Securities Act, including sales made directly on or through Nasdaq, on or through any other existing trading
market for the Common Stock or to or through a market maker. If expressly authorized by the Company (including in a Placement Notice),
the Agent may also sell Placement Shares in negotiated transactions. Notwithstanding the provisions of Section 6(ss), except as may be
otherwise agreed by the Company and the Agent, the Agent shall not purchase Placement Shares on a principal basis pursuant to this Agreement
unless the Company and the Agent enter into a separate written agreement setting forth the terms of such sale. The Company acknowledges
and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur
no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than
a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of Nasdaq to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement unless
the Company and the Agent enter into a separate written agreement setting forth the terms of such sale. For the purposes hereof, “Trading
Day” means any day on which the Common Stock is purchased and sold on Nasdaq. In the event the Company engages the Agent
for a sale of Placement Shares that would constitute a “block” within the meaning of Rule 10b-18(a)(5) under the Exchange
Act (a “Block Sale”), the Company will provide the Agent, at the Agent’s request and upon reasonable
advance notice to the Company, on or prior to the Settlement Date (as defined below), the opinions of counsel, comfort letter and officers’
certificates set forth in Section 7 hereof, each dated the Settlement Date, and such other documents and information as the Agent shall
reasonably request.
4.
Suspension of Sales.
(a)
The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by email correspondence to each of the
individuals of the other party set forth on Schedule 2), suspend any sale of Placement Shares; provided, however,
that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against the
other party unless notice is sent by one of the individuals named on Schedule 2 hereto to the other party in writing (including
by email correspondence to each of the individuals of the other party set forth on Schedule 2, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply).
(b)
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Agent agree that (i) the Company shall not request the sale of any Placement Shares and shall suspend
or cancel any effective Placement Notices instructing the Agent to make any sales and (ii) the Agent shall not be obligated to sell or
offer to sell any Placement Shares.
5.
Settlement and Delivery of the Placement Shares.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second Trading Day (or such earlier day as is industry practice or as is required for regular-way trading) following
the date on which such sales are made, or at such other time and date as the Agent and the Company determine pursuant to Rule 15c6-1(a)
under the Exchange Act (each, a “Settlement Date”). The amount of proceeds to be delivered to the Company on
a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate
gross sales price received by the Agent at which such Placement Shares were sold, after deduction of (i) the Agent’s commission,
discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and payable
by the Company to the Agent hereunder pursuant to Section 7(g) hereof and (iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will issue the Placement Shares being sold on such
date and will, or will cause its transfer agent to, electronically transfer such Placement Shares by crediting the Agent’s or its
designee’s account (provided the Agent shall have given the Company written notice of such designee prior to the Settlement Date)
at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such
other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be duly authorized, freely tradeable,
transferable, registered shares of Common Stock in good deliverable form. On each Settlement Date, the Agent will deliver the related
Net Proceeds in same day funds to an account designated by the Company on or prior to the Settlement Date. The Agent shall be responsible
for providing DWAC instructions or other instructions for delivery by other means with regard to the transfer of the Placement Shares
being sold. In addition to and in no way limiting the rights and obligations set forth in Section 9(a) hereto, the Company agrees that
if the Company or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized, freely tradeable, transferable,
registered Placement Shares in good deliverable form by 2:30 P.M., New York City time, on a Settlement Date (other than as a result of
a failure by the Agent to provide instructions for delivery), the Company will (i) take all necessary action to cause the full amount
of any Net Proceeds that were delivered to the Company’s account with respect to such settlement, together with any costs incurred
by the Agent and/or its clearing firm in connection with recovering such Net Proceeds, to be immediately returned to the Agent or its
clearing firm no later than 5:00 P.M., New York City time, on such Settlement Date, by wire transfer of immediately available funds to
an account designated by the Agent or its clearing firm, (ii) indemnify and hold the Agent and its clearing firm harmless against any
loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company or its transfer agent (if applicable) (excluding any amounts paid pursuant to subclause (b)(i) above) and (iii)
pay to the Agent any commission, discount or other compensation to which it would otherwise have been entitled absent such default. Certificates
for the Placement Shares, if any, shall be in such denominations and registered in such names as the Agent may request in writing one
Business Day (as defined below) before the applicable Settlement Date. Certificates for the Placement Shares, if any, will be made available
by the Company for examination and packaging by the Agent in New York City not later than 12:00 P.M., New York City time, on the Business
Day prior to the applicable Settlement Date; provided, that the Agent shall have provided the Company with the requested denominations
and names for such certificates.
(c)
Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares
if, after giving effect to the sale of such Placement Shares, the aggregate number or gross sales proceeds of Placement Shares sold pursuant
to this Agreement would exceed the lesser of: (i) the number or dollar amount of shares of Common Stock registered pursuant to, and available
for offer and sale under, the Registration Statement pursuant to which the offering of Placement Shares is being made, (ii) the number
of authorized but unissued shares of Common Stock of the Company (less shares of Common Stock issuable upon exercise, conversion or exchange
of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (iii) the number
or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3 (including General Instruction
I.B.6. thereof, if such instruction is applicable), (iv) the number or dollar amount of shares of Common Stock that the Company’s
board of directors or a duly authorized committee thereof or authorized executive officers of the Company are authorized to issue and
sell from time to time, and notified to the Agent in writing, or (v) the dollar amount of shares of Common Stock for which the Company
has filed the Sales Prospectus. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant
to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors or a
duly authorized committee thereof or authorized executive officers of the Company, and notified to the Agent in writing. Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge and agree that compliance with the limitations set forth in
this Section 5(c) on the number or dollar amount of Placement Shares that may be issued and sold under this Agreement from time to time
shall be the sole responsibility of the Company, and that the Agent shall have no obligation in connection with such compliance.
6.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Agent that, unless
such representation or warranty specifies a different time, as of the date of this Agreement, and as of (i) each Representation Date
(as defined in Section 7(m)), (ii) each date on which a Placement Notice is given, (iii) the date and time of each sale of any Placement
Shares pursuant to this Agreement and (iv) each Settlement Date (each such time or date referred to in clauses (i) through (iv), an “Applicable
Time”):
(a)
The Company and the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use
of Form S-3 (including General Instructions I.A and I.B.1.) under the Securities Act. The Registration Statement will be filed with the
Commission and will be declared effective by the Commission under the Securities Act prior to the issuance of any Placement Notices by
the Company. At the time the Registration Statement becomes effectives,, the Company met the then-applicable requirements for use of
Form S-3 (including General Instructions I.A and I.B.1.) under the Securities Act. The Registration Statement meets, and the offering
and sale of Placement Shares as contemplated hereby comply with, the requirements of Rule 415(a)(1)(x) under the Securities Act. The
Agent is named as the agent engaged by the Company in the section entitled “Plan of Distribution” in the Sales Prospectus
.. The Company has not received, and has no notice from the Commission of, any notice pursuant to Rule 401(g)(1) under the Securities
Act objecting to the use of the shelf registration statement form. No stop order of the Commission preventing or suspending the use of
the base prospectus or the Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such
purpose are pending before or, to the knowledge of the Company, threatened by the Commission. At the time of the initial filing of the
Registration Statement, the Company paid the required Commission filing fees relating to the securities covered by the Registration Statement,
including the Placement Shares that may be sold pursuant to this Agreement, in accordance with Rule 457(o) under the Securities Act.
Copies of the Registration Statement, the Prospectus, any such amendments or supplements to any of the foregoing and all Incorporated
Documents that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through
EDGAR, to the Agent and its counsel.
(b)
Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, at each deemed
effective date with respect to the Agent pursuant to Rule 430B(f)(2) under the Securities Act and as of each Applicable Time, complied,
complies and will comply in all material respects with the requirements of the Securities Act and did not, does not and will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, except that the representations and warranties set forth in this sentence do not apply to Agent’s Information
(as defined below). The Prospectus and any amendment or supplement thereto, when so filed with the Commission under Rule 424(b) under
the Securities Act, complied, complies and as of each Applicable Time will comply in all material respects with the requirements of the
Securities Act, and each Prospectus or issuer free writing prospectus (or any amendments or supplements to any of the foregoing) furnished
to the Agent for use in connection with the offering of the Placement Shares was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. Neither the Prospectus nor any amendment
or supplement thereto, as of its date and as of each Applicable Time, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit 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, except that the representations and warranties set forth in this sentence do not apply to
Agent’s Information. Each Incorporated Document heretofore filed, when it was filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and
were filed on a timely basis with the Commission, and any further Incorporated Documents so filed and incorporated after the date of
this Agreement will be filed on a timely basis and, when so filed, will conform in all material respects with the requirements of the
Exchange Act; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when
such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and no such Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c)
(i) At the time of filing the Registration Statement and (ii) at the time of the execution of this Agreement (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined
in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company
be considered an ineligible issuer.
(d)
From the time of the initial filing of the Company’s first registration statement with the Commission through the date hereof,
the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging
Growth Company”).
(e)
Each issuer free writing prospectus, as of its issue date and as of each Applicable Time, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus,
including any Incorporated Document deemed to be a part thereof that has not been superseded or modified. Each issuer free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433 or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the Securities Act.
(f)
The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the Agent’s distribution
of the Placement Shares under this Agreement, will not distribute any offering material in connection with the offering and sale of the
Placement Shares other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus (as defined below).
(g)
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement and
the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(h)
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on Nasdaq, and the Company
has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from Nasdaq, nor except as disclosed in the Registration Statement and the Prospectus, has
the Company received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. Except
as disclosed in the Registration Statement and the Prospectus, the Company is in compliance with the current listing standards of Nasdaq
in all material respects. The Company has filed a Notification of Listing of Additional Shares with Nasdaq with respect to the Placement
Shares.
(i)
No person (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has the right to act as an underwriter
or as a financial advisor to the Company in connection with the offer and sale of the Placement Shares hereunder, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated hereby or otherwise.
Except for the Agent, there is no broker, finder or other party that is entitled to receive from the Company or any of its Subsidiaries
(as defined below) any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this
Agreement.
(j)
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to acquire, own, lease and operate its properties, and to lease the same to others, and to conduct
its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement.
The Company is duly qualified to transact business as a foreign corporation and is in good standing in the State of California and under
the laws of each other jurisdiction that requires such qualification, whether by reason of the ownership or leasing of property or the
conduct of business, except to the extent that the failure to be so qualified or in good standing would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect on the condition (financial or otherwise), earnings, results of operations,
business, properties, operations, assets, liabilities or prospects of the Company and its Subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(k)
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities Act)
(each, a “Subsidiary” and collectively, the “Subsidiaries”), if any, has been duly
organized and is validly existing in good standing (where such concept exists) under the laws of the jurisdiction of its organization
and has full power and authority to acquire, own, lease and operate its properties, and to conduct its business as described in the Registration
Statement and the Prospectus. Each Subsidiary is duly qualified to transact business and is in good standing (where such concept exists)
under the laws of each jurisdiction that requires such qualification, whether by reason of the ownership or leasing of property or the
conduct of business, except to the extent that the failure to be so qualified or in good standing could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect. All of the issued and outstanding share capital or other equity or ownership
interests of each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable, has been issued in compliance
with federal state and securities laws and is owned by the Company, directly or through other wholly-owned Subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not own or control, directly or indirectly,
any corporation, association or other entity, other than the Subsidiaries listed on Exhibit 21.1 to the Company’s most recent Annual
Report on Form 10-K filed with the Commission.
(l)
The Company has the authorized and outstanding capitalization as set forth in the Registration Statement and Prospectus, as of the dates
referred to therein (subject, in each case, to the issuance of Placement Shares under this Agreement, the issuance of shares of Common
Stock upon exercise of share options and warrants disclosed as outstanding in the Registration Statement and the Prospectus and the grant
of options under existing share option plans described in the Registration Statement and the Prospectus). The Common Stock conforms in
all material respects to the description thereof contained in the Registration Statement and the Prospectus, as applicable, including
under the heading “Description of Capital Stock.” All of the issued and outstanding share capital or other equity or ownership
interest of the Company (including the Common Stock) have been duly authorized and validly issued and is fully paid and nonassessable,
have been issued in compliance with all federal, state and local securities laws and are free and clear of any security interest, mortgage,
pledge, lien, encumbrance or adverse claim. None of the outstanding shares of capital stock of the Company were issued in violation of
any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase or subscribe
for, or equity or debt securities convertible into or exchangeable or exercisable for, any share capital of the Company or any of its
Subsidiaries other than those described in the Registration Statement and the Prospectus. The descriptions of the Company’s equity
incentive plan, stock option plans and other stock plans or arrangements described in the Prospectus and in effect as of the date hereof
(collectively, the “Stock Plans”) and the options or other rights granted thereunder, set forth in the Registration Statement
and the Prospectus accurately and fairly present, in all material respects, the information required to be shown with respect to such
Stock Plans and the options or other rights granted thereunder.
(m)
The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the
Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable and will conform in
all material respects to the description thereof contained in the Prospectus. The issuance and sale of the Placement Shares as contemplated
hereby shall not be subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase the
Placement Shares. When issued and delivered by the Company against payment therefor pursuant to this Agreement, the purchasers of the
Placement Shares issued and sold hereunder will acquire good, marketable and valid title to such Placement Shares, free and clear of
all pledges, liens, security interests, charges, claims or encumbrances. The issuance and sale of the Placement Shares as contemplated
hereby will not cause any holder of any share capital, securities convertible into or exchangeable or exercisable for share capital or
options, warrants or other rights to purchase share capital or any other securities of the Company to have any right to acquire any preferred
shares of the Company. There are no restrictions upon the voting or transfer of the Common Stock under the Company’s amended and
restated certificate of incorporation or amended and restated bylaws or any agreement or other instrument to which the Company is a party
or otherwise filed as an exhibit to the Registration Statement.
(n)
There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which have not been so described and filed as required, except for this Agreement.
(o)
This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability, including rights of
indemnification, may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally and by general principles of equity.
(p)
The Company is not and, after giving effect to the offering and sale of the Placement Shares and the application of the proceeds thereof
as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as
amended.
(q)
No consent, approval, license, permit, qualification, authorization or other order or decree of, or registration or filing with, any
court or other governmental, taxing or regulatory authority or agency, is required for the Company’s execution, delivery and performance
of this Agreement or consummation of the transactions contemplated hereby or by the Registration Statement and the Prospectus (including
the issuance and sale of the Placement Shares hereunder), except such as have been already obtained or made or as may be required under
the Securities Act, applicable state securities or Blue Sky laws, applicable rules of Nasdaq, or Rule 5110 of the Financial Industry
Regulatory Authority, Inc. (“FINRA”).
(r)
Neither the execution and delivery by the Company of, nor the performance of the Company of its obligations under, this Agreement will
conflict with, result in a breach or violation of, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to: (i) the certificate or articles of incorporation, charter,
bylaws, articles of association, limited liability company agreement, certificate or agreement of limited or general partnership or other
similar organizational documents, as the case may be, of such entity, (ii) the terms of any indenture, contract, license, lease, mortgage,
deed of trust, note agreement, agreement or other instrument, obligation, condition, covenant or instrument to which it is a party or
bound or to which its property or assets is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, any of its Subsidiaries or any of their respective properties or assets, as applicable,
except, in the case of clauses (ii) and (iii) above, for any such conflict, breach, violation or default that would not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect.
(s)
Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been
no Material Adverse Effect, or any development that would reasonably be expected to have a Material Adverse Effect, in the condition
(financial or otherwise), earnings, results of operations, business, properties, operations, assets, liabilities or prospects of the
Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (ii) neither
the Company nor its Subsidiaries has (A) incurred any material liability or obligation, indirect, direct or contingent, including without
limitation any losses or interference with its business from fire, explosion, flood, earthquakes, accident or other calamity, whether
or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that are material, individually
or in the aggregate, to the Company and its Subsidiaries, considered as one entity, or (B) entered into any material transactions not
in the ordinary course of business; and (iii) there has not been any material decrease in the share capital or any material increase
in any short-term or long-term indebtedness of the Company or any of its Subsidiaries and there has been no dividend or distribution
of any kind declared, paid or made by the Company or, except for dividends paid to the Company or another Subsidiary, by any Subsidiary
on any class of shares, or any repurchase or redemption by the Company or any of its Subsidiaries of any class of shares.
(t)
There are no persons (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) with registration
or other similar rights to have any equity or debt securities of the Company registered for sale under the Registration Statement or
included in the offering contemplated by this Agreement, except for such rights as have been duly waived in a writing previously furnished
to the Agent.
(u)
The financial statements incorporated by reference in the Registration Statement and the Prospectus, together with the related notes
and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries as of
the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and
the Subsidiaries for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange
Act and in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent
basis during the periods involved, except as may be expressly stated in the related notes thereto. To the extent applicable, any pro
forma financial statements, information or data included or incorporated by reference in the Registration Statement and the Prospectus
comply with the requirements of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, fairly present
the information set forth herein, and the assumptions used in the preparation of such pro forma financial statements and data are reasonable,
the pro forma adjustments used therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of those statements and data. The other financial data incorporated
by reference in the Registration Statement and the Prospectus is accurately and fairly presented and prepared on a basis consistent with
the financial statements and books and records of the Company. There are no financial statements (historical or pro forma) that are required
to be included or incorporated by reference in the Registration Statement or the Prospectus that are not included or incorporated by
reference therein as required. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations or any “variable interest entities” as that term is used in Accounting Standards
Codification Paragraph 810-10-25-20), not disclosed in the Registration Statement and the Prospectus. All disclosures contained in the
Registration Statement or the Prospectus that contain “non-GAAP financial measures” (as such term is defined by the rules
and regulations of the Commission) comply, in all material respects, with Regulation G under the Exchange Act and Item 10 of Regulation
S-K under the Securities Act, to the extent applicable. The statistical, industry-related and market-related data incorporated by reference
in the Registration Statement and the Prospectus were obtained or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, such data agree with the sources from which they are derived, and the Company has obtained the written
consent to the use of such data from such sources to the extent required. To the Company’s knowledge, no person who has been suspended
or barred from being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule
5300 promulgated by the Public Company Accounting Oversight Board (“PCAOB”), has participated in or otherwise
aided the preparation of, or audited, the financial statements, supporting schedules or other financial data filed with the Commission
as a part of the Registration Statement and the Prospectus.
(v)
There are no actions, suits, claims, investigations or proceedings pending or, to the Company’s knowledge, threatened to which
the Company or any of the Subsidiaries is or would be a party, or of which any of the respective properties or assets of the Company
and the Subsidiaries is or would be subject, at law or in equity, before any court or arbitral body or by or before any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, that (i) are required to be described in the
Registration Statement or the Prospectus and are not so described, (ii) would reasonably be expected to have a Material Adverse Effect
on the ability of the Company to perform its obligations under this Agreement or on the consummation of any of the transactions contemplated
hereby or (iii) would reasonably be expected to have a Material Adverse Effect. The aggregate of all pending legal or governmental proceedings
to which the Company or any of its Subsidiaries is a party or of which any of their respective properties or assets is the subject which
are not described in the Prospectus, including ordinary routine litigation incidental to the Company’s business, would not reasonably
be expected to (A) result in a Material Adverse Effect or (B) have a Material Adverse Effect on the ability of the Company to perform
its obligations under this Agreement or the consummation of any of the transactions contemplated hereby.
(w)
The Company owns or leases all such real properties as are necessary to the conduct of its operations as presently conducted in all material
respects.
(x)
Neither the Company nor any Subsidiary is in violation or default of (i) any provision of its certificate or articles of incorporation,
charter, bylaws, articles of association, limited liability company agreement, certificate or agreement of limited or general partnership,
or other similar organizational documents, as the case may be, of such entity, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party
or bound or to which its property or assets is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company,
any of its Subsidiaries or any of their respective properties or assets, as applicable, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect.
(y)
Weinberg & Company, P.A., whose report on the financial statements of the Company is filed with the Commission as part of the Company’s
most recent annual report on Form 10-K filed with the Commission and incorporated by reference in the Registration Statement and the
Prospectus, is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange Act and the rules
of the PCAOB, (ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation
S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended
or revoked and who has not requested such registration to be withdrawn. Weinberg & Company, P.A. has not been engaged by the Company
to perform any “prohibited activities” or provided to the Company any “non-audit services” (as defined in Section
10A of the Exchange Act).
(z)
There are no transfer taxes or other similar fees or charges under federal law, the laws of any state, any foreign law, or any political
subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Placement Shares.
(aa)
The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has
duly obtained extensions of time for the filing thereof, except if a failure to file would not reasonably be expected to result in a
Material Adverse Effect. The Company has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has
paid all taxes imposed on or assessed against the Company, except (i) such taxes the Company is challenging in good faith and (ii) for
such exceptions as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The provisions
for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all
material accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial
statements. Except as disclosed in the Registration Statement and the Prospectus, (i) no issues have been raised (and are currently pending)
by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no waivers of statutes
of limitation with respect to the returns or collection of taxes have been given by or requested from the Company. To the Company’s
knowledge, there are no tax liens against the assets, properties or business of the Company. The term “taxes” means all federal,
state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license,
lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits,
customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions
to tax or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements
and other documents required to be filed in respect to taxes.
(bb)
No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent except as would not reasonably
be expected to result in a Material Adverse Effect. The Company is not aware that any key employee or group of significant employees
of the Company plans to terminate employment with the Company.
(cc)
Each of the Company and its Subsidiaries are insured by recognized and reputable institutions with policies in such amounts and with
such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the Company and its Subsidiaries against theft, damage, destruction,
acts of vandalism and policies covering the Company and its Subsidiaries for clinical trial liability claims. The Company has no reason
to believe that it or any of its Subsidiaries will not be able (i) to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as
now conducted and at a cost that could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has been denied any material insurance coverage which it has sought or for which it has applied.
(dd)
The Company and each of its Subsidiaries has good and marketable title in fee simple to all real property owned by them and good and
marketable title to all personal property owned by them that is material to their business (except with respect to intellectual property,
which is addressed exclusively in Section 6(oo), Section 6(pp) and Section 6(fff) below), in each case free and clear of all liens, encumbrances
and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company or any Subsidiary; and any real property and buildings held under lease by the Company or any
of its Subsidiaries are held by them under valid, subsisting and enforceable leases (subject to the effects of (A) bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights or remedies
of creditors generally; (B) the application of general principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether enforcement is considered in proceedings at law or in equity); and
(C) applicable law and public policy with respect to rights to indemnity and contribution) with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and buildings by the Company or such Subsidiary.
(ee)
The Company and its Subsidiaries possess and are operating in compliance with such valid and current material certificates, authorizations
or permits required by United States federal, state or foreign regulatory agencies or bodies to conduct their respective businesses as
currently conducted and as described in the Registration Statement and the Prospectus (collectively, “Permits”).
Neither the Company nor any of its Subsidiaries is in violation of, or in default under, any of the Permits or has received any written
notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit,
which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(ff)
The Company and each of its Subsidiaries make and keep accurate books and records and maintain a system of internal accounting controls
designed, and which the Company believes is sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information
called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(gg)
Except as disclosed in the Registration Statement and the Prospectus, the Company and each of its Subsidiaries have established and maintain
disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are designed to ensure that
information relating to the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive
officer and its principal financial officer by others within those entities; (ii) have been evaluated by management of the Company for
effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are effective in all material respects to perform
the functions for which they were established. Except as disclosed in the Registration Statement and the Prospectus, since the end of
the Company’s most recent audited fiscal year, there has been no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and no change in the Company’s internal control over financial reporting, including
any corrective actions with regard to significant deficiencies or material weaknesses. The Company is not aware of any change in its
internal control over financial reporting that has occurred during its most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting.
(hh)
Neither the Company, nor any of its Subsidiaries, nor to the knowledge of the Company, any of its or their respective directors, officers
or controlling persons has taken, directly or indirectly, without giving effect to any actions taken by the Agent, (i) any action designed
to or that might constitute or reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Placement Shares or (ii) any action designed to or
that might constitute or reasonably be expected to cause or result in a violation of Regulation M under the Exchange Act.
(ii)
The Company is in compliance with all foreign, federal, state and local rules, laws and regulations relating to the use, treatment, storage
and disposal of hazardous or toxic substances or waste and protection of health and safety or the environment which are applicable to
their businesses (“Environmental Laws”), except where the failure to comply would not reasonably be expected
to, singularly or in the aggregate, result in a Material Adverse Effect. There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due
to, or caused by the Company (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may
otherwise be liable) upon any of the property now or previously owned or leased by the Company, or upon any other property, in violation
of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance,
rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any violation
or liability which would not reasonably be expected to have, singularly or in the aggregate with all such violations and liabilities,
a Material Adverse Effect; and there has been no disposal, discharge, emission or other release of any kind onto such property or into
the environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which the Company
has knowledge, except for any such disposal, discharge, emission, or other release of any kind which would not reasonably be expected
to have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Effect.
(jj)
There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which would reasonably be expected to, singly or in the aggregate,
have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
(kk)
The Company is in compliance with, and there is and has been no failure on the part of the Company and, to the Company’s knowledge,
any of the Company’s directors or officers, in their capacities as such, to comply with, any provision of the Sarbanes-Oxley Act
of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley
Act”) and the rules and regulations promulgated in connection therewith, including Section 402 relating to loans.
(ll)
For the past five years, neither the Company nor any of its Subsidiaries nor any director or officer of the Company or any of its Subsidiaries,
nor to the knowledge of the Company, any employee, agent, affiliate or other person acting on behalf of the Company or any of its Subsidiaries
has, in the course of its actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made or taken any act in furtherance
of an offer, promise, or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official
or employee, including of any government-owned or controlled entity or public international organization, or any political party, party
official, or candidate for political office; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, authorized, requested, or taken an act in furtherance of any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment or benefit. The Company and its Subsidiaries and, to the knowledge of the Company, the Company’s
affiliates have conducted their respective businesses in compliance with the FCPA and have instituted and maintain policies and procedures
reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(mm)
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the money laundering statutes
and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit, investigation or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries
with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.
(nn)
Neither the Company nor any of its Subsidiaries, nor any director or officer thereof, nor, to the Company’s knowledge, any employee,
agent, affiliate or representative of the Company or any of its Subsidiaries, is currently or is owned or controlled by an individual
or entity that is subject to any sanctions administered or enforced by the United States government (including, without limitation, the
Office of Foreign Assets Control of the United States Department of the Treasury), the United Nations Security Council, the European
Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”) or is
located, organized or resident in a country or territory that is the subject or target of Sanctions (currently, Cuba, Iran, North Korea,
Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine);
and the Company will not directly or indirectly use the proceeds of the sale of the Placement Shares, or lend, contribute or otherwise
make available such proceeds to any Subsidiary, or any joint venture partner or other person or entity, for the purpose of financing
or facilitating the activities of or business of any person or entity, or in any country or territory, that currently or at the time
of such financing or facilitation is the subject of any Sanctions prohibiting such financing or facilitation or in any other manner that
will result in a violation by any person or entity (including any person participating in the transactions contemplated by this Agreement)
of any Sanctions. For the past five years, the Company and its Subsidiaries have not knowingly engaged in and are not now knowingly engaged
in any dealings or transactions with any person or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(oo)
The Company and its Subsidiaries own or possess the right to use all inventions, patent applications, patents, trademarks, trade names,
service names, domain names, copyrights, trade secrets, know-how and other intellectual property (collectively, “Intellectual
Property”) as are (i) necessary or material for the conduct of their respective businesses as currently conducted or as
currently proposed to be conducted and as described in the Registration Statement and the Prospectus and (ii) necessary or material for
the commercialization of the products described in the Registration Statement and the Prospectus as being under development. There is
no pending or, to the Company’s knowledge, threatened (i) action, suit, proceeding, or claim by others challenging the rights of
the Company or any of its Subsidiaries in or to any such Intellectual Property that, if decided adversely to the Company or such Subsidiary
would reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (ii) action, suit, proceeding, or claim by others that the Company or any
of its Subsidiaries infringes, misappropriates, or otherwise violates any Intellectual Property of others that, if decided adversely
to the Company or such Subsidiary would reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect,
and the Company is unaware of any facts which would form a reasonable basis for any such claim; or (iii) action, suit, proceeding, or
claim by others challenging the validity, scope, or enforceability of any such Intellectual Property owned or licensed by the Company
or its Subsidiaries and the Company is unaware of any facts which would form a reasonable basis for any such claim. To the best of the
Company’s knowledge, the operation of the business of the Company and its Subsidiaries as now conducted, and as described in the
Prospectus, and in connection with the development and commercialization of the products described in the Prospectus does not infringe,
misappropriate, conflict with or otherwise violate any claim of any patent of any other person or entity. There is no prior art of which
the Company or any of its Subsidiaries is aware that may render any patent owned or licensed by the Company or its Subsidiaries invalid
or any patent application owned or licensed by the Company or its Subsidiaries unpatentable which has not been disclosed to the applicable
government patent office. The Company’s granted or issued patents (owned or licensed in), registered trademarks and registered
copyrights have been duly maintained and are in full force and effect, and none of the patents, trademarks and copyrights have been adjudged
invalid or unenforceable in whole or in part. The Company knows of no infringement, misappropriation or violation by others of any Intellectual
Property owned or licensed by the Company or its Subsidiaries which would reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries is a party to or bound by any options, licenses or agreements with respect to the Intellectual
Property of any other person or entity that are required to be set forth in the Prospectus and that are not described therein in all
material respects. The Company and its Subsidiaries have taken all reasonable steps necessary to secure their interests in the Intellectual
Property of the Company and its Subsidiaries from their employees and contractors and to protect the confidentiality of all of their
confidential information and trade secrets. None of the technology or Intellectual Property used by the Company and its Subsidiaries
in its business has been obtained or is being used by the Company or its Subsidiaries in violation of any contractual obligation binding
on the Company or its Subsidiaries, or, to the Company’s knowledge, any of its officers, directors or employees or otherwise in
violation of the rights of any persons. No third party has been granted by the Company or its Subsidiaries rights to the Intellectual
Property of the Company or its Subsidiaries, including any rights that, if exercised, could enable such party to develop products competitive
to those of the Company as described in the Registration Statement and the Prospectus. All Intellectual Property owned or exclusively
licensed by the Company or its Subsidiaries are free and clear of all liens, encumbrances, defects or other restrictions (other than
non-exclusive licenses granted in the ordinary course of business), except those that could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect. The Company and its Subsidiaries are not subject to any judgment, order, writ,
injunction or decree of any court or any federal, state, local, foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, nor has it entered into or is it a party to any agreement made in
settlement of any pending or threatened litigation, which materially restricts or impairs their use of any Intellectual Property.
(pp)
All patent and patent applications owned by or licensed to the Company or its Subsidiaries have been duly and properly filed, prosecuted
and maintained in all material respects; to the knowledge of the Company, the parties prosecuting the patent applications owned or co-owned
by, or licensed to the Company and patent applications from which patents owned or co-owned by, or licensed to the Company have issued
have complied with their duty of candor and disclosure to the U.S. Patent and Trademark Office in connection with such applications;
and the Company is not aware of any facts required to be disclosed to the USPTO that were not disclosed to the USPTO and which would
preclude the grant of a patent in connection with any such application or would reasonably be expected to form the basis of a finding
of invalidity with respect to any patents that have been issued with respect to such applications.
(qq)
There is no legal or governmental proceeding to which the Company or any of its Subsidiaries is a party or of which any property or assets
of the Company or any of its Subsidiaries is the subject, including any proceeding before the United States Food and Drug Administration
(“FDA”), European Medicines Agency (“EMA”) or any foreign, local, national or other
governmental agency with jurisdiction over the types of products being developed by the Company that is required to be described in the
Registration Statement or the Prospectus and is not described therein, or which, singularly or in the aggregate, if determined adversely
to the Company or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect; and no such proceedings are
threatened or contemplated by governmental or regulatory authorities or threatened by others. The Company and its Subsidiaries (i) have
not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any
governmental authority or third party alleging that any product operation or activity is in violation of any Applicable Laws (as defined
below) or Governmental Permits (as defined below) and have no knowledge that any such governmental authority or third party is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding and (ii) have not received notice that any governmental
authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Governmental Permits and the Company
has no knowledge that any such governmental authority is considering such action.
(rr)
The studies, tests and preclinical or clinical trials conducted by or on behalf of the Company that are described in the Registration
Statement and the Prospectus (the “Company Studies and Trials”) were and, if still pending, are being, conducted
in all material respects in accordance with experimental protocols, procedures and controls pursuant to, where applicable, accepted professional
scientific standards; the descriptions of the results of the Company Studies and Trials contained in the Registration Statement and the
Prospectus are accurate and complete in all material respects and fairly presents the data derived from such Company Studies and Trials;
the Company has no knowledge of any other studies or trials not described in the Registration Statement and the Prospectus, the results
of which are inconsistent with or call in question the results described or referred to in the Registration Statement and the Prospectus;
and the Company has not received any notices or correspondence with the FDA or any foreign, state or local governmental body exercising
comparable authority requiring the termination, suspension or material modification of any Company Studies and Trials which termination,
suspension or material modification would reasonably be expected to result in a Material Adverse Effect and, to the Company’s knowledge,
there are no reasonable grounds for the same. The Company has obtained (or caused to be obtained) informed consent by or on behalf of
each human subject who participated in the Company Studies and Trials. In using or disclosing patient information received by the Company
in connection with the Company Studies and Trials, the Company has complied in all material respects with all applicable laws and regulatory
rules or requirements, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and the rules and
regulations thereunder. To the Company’s knowledge, none of the Company Studies and Trials involved any investigator who has been
disqualified as a clinical investigator or has been found by the FDA to have engaged in scientific misconduct. To the Company’s
knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in all material respects with all
applicable statutes, rules, regulations and policies of the FDA and comparable regulatory agencies outside of the United States to which
the Company is subject.
(ss)
None of the Company, any of its officers, directors, managing employees (as defined in 42 U.S.C. § 1320a-5(b)) or Subsidiaries or,
to the knowledge of the Company, agents, is or has been excluded, suspended or debarred from participation in any state or federal health
care program, or made subject to any pending or, to the Company’s knowledge, threatened or contemplated action which would result
in such exclusion, suspension or debarment. The Company is not a party to or has any ongoing reporting obligations pursuant to any corporate
integrity agreement, deferred or non-prosecution agreement, monitoring agreement, consent decree, settlement order, plan of correction
or similar agreement imposed by any governmental authority.
(tt)
Other than with respect to this agreement and as disclosed in the Company’s filings with the Commission, the Company is not a party
to any agreement with an agent or underwriter for any other “at the market” or continuous equity transaction.
(uu)
The Company is not required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange
Act and does not, directly or indirectly through one or more intermediaries, control or have any other association with (within the meaning
of Article I of the By-laws of FINRA) any member firm of FINRA. No relationship, direct or indirect, exists between or among the Company,
on the one hand, and the directors, officers or shareholders of the Company, on the other hand, which is required by the rules of FINRA
to be described in the Registration Statement and the Prospectus, which is not so described. All of the information (including, but not
limited to, information regarding affiliations, security ownership and trading activity) provided to the Agent or its counsel by the
Company, its officers and directors and the holders of any securities (debt or equity) or warrants, options or rights to acquire any
securities of the Company in connection with the filing to be made and other supplemental information to be provided to FINRA pursuant
to FINRA Rule 5110 in connection with the transactions contemplated by this Agreement is true, complete and correct.
(vv)
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.
(ww)
Each of the independent directors (or independent director nominees, once appointed, if applicable) named in the Registration Statement
and Prospectus satisfies the independence standards established by Nasdaq and, with respect to members of the Company’s audit committee,
the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated by the Commission under the Exchange Act.
(xx)
Neither the Company nor, to the Company’s knowledge, any of its affiliates (within the meaning of Rule 144 under the Securities
Act) has, prior to the date hereof, made any offer or sale of any securities which could be “integrated” (within the meaning
of the Securities Act) with the offer and sale of the Placement Shares hereunder.
(yy)
Neither the Company nor any of its Subsidiaries has (i) failed to pay any dividend or sinking fund installment on preferred stock or
(ii) defaulted on any installment or payment due on indebtedness for borrowed money or on any rental on one or more long-term leases,
which defaults, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(zz)
Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A of the Securities
Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was so included by the Company
in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates and other applicable
facts and circumstances and (ii) as required, is accompanied by meaningful cautionary statements identifying those factors that could
cause actual results to differ materially from those in such forward-looking statement. No such statement was made with the knowledge
of a director or senior manager of the Company that was false or misleading.
(aaa)
There are no relationships, direct or indirect, or related party transactions involving the Company or any of its Subsidiaries or any
other person (including any director, officer, stockholder, customer or supplier of the Company or any of its Subsidiaries) required
to be described in the Registration Statement or the Prospectus that have not been described as required. Except as disclosed in the
Registration Statement and the Prospectus, there are no material outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company or any of its Subsidiaries to or for the benefit of
any of the officers or directors of the Company or any of its Subsidiaries, or any of the family members of any of such persons.
(bbb)
The Company is not in or subject to a bankruptcy or insolvency proceeding in any jurisdiction.
(ccc)
Except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has breached
and is currently in breach of any provision of any license, contract or other agreement governing the use by the Company or its Subsidiaries
of Intellectual Property owned by third parties (collectively, the “Licenses”) and no third party has alleged
any such breach and the Company is unaware of any facts that would form a reasonable basis for such a claim. To the Company’s knowledge,
no other party to the Licenses has breached or is currently in breach of any provision of the Licenses. Each of the Licenses is in full
force and effect and constitutes a valid and binding agreement between the parties thereto, enforceable in accordance with its terms,
and there has not occurred any breach or default under any such Licenses or any event that, with the giving of notice or lapse of time,
would constitute a breach or default thereunder. Except as would not reasonably be expected to have a Material Adverse Effect, neither
the Company nor any of its Subsidiaries has been and is currently involved in any disputes regarding the Licenses. To the Company’s
knowledge, all patents licensed to the Company pursuant to the Licenses are valid, enforceable and being duly maintained. To the Company’s
knowledge, all patent applications licensed to the Company pursuant to the Licenses are being duly prosecuted.
(ddd)
Neither the Company nor any of its Subsidiaries has any securities rated by any “nationally recognized statistical rating organization,”
as such term is defined in Section 3(a)(62) of the Exchange Act.
(eee)
The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained
by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA
Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections 414(b), (c), (m)
or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”)
of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates, if such “employee
benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither
the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates that
is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing has occurred,
whether by action or failure to act, which would cause the loss of such qualification.
(fff)
The Company and each of its Subsidiaries (i) are and have at all times been in full compliance with all laws, statutes, rules, regulations
or guidance applicable to the Company and its Subsidiaries and the ownership, testing, development, manufacture, packaging, processing,
use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any pharmaceuticals
or biohazardous substances, materials or any other products developed, manufactured or distributed by the Company (including, without
limitation, from the FDA, EMA and any local or other governmental or regulatory authority performing functions similar to those performed
by the FDA or EMA) (collectively, “Applicable Laws”), except as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (ii) have not received any notice of adverse finding, warning letter,
untitled letter or other correspondence or notice from the FDA or any other federal, state or foreign governmental authority having authority
over the Company, any of its Subsidiaries or their activities alleging or asserting noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws
(collectively, the “Governmental Permits”), (iii) have made all filings with, the appropriate local, or other
governmental or regulatory agencies or bodies that are necessary for the ownership or lease of their respective properties or the conduct
of their respective businesses as described in the Registration Statement and the Prospectus, except where any failures to possess or
make the same would not reasonably be expected to, singularly or in the aggregate, have a Material Adverse Effect, (iv) possess all material
Governmental Permits necessary to conduct their respective businesses as described in the Registration Statement and the Prospectus,
and such Governmental Permits are valid and in full force and effect and are not in violation of any term of any such Governmental Permits,
and (v) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Governmental Permits and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct in all material respects
on the date filed (or were corrected or supplemented by a subsequent submission). Neither the Company nor any Subsidiary has received
notification of any revocation, modification, suspension, termination or invalidation (or proceedings related thereto) of any such Governmental
Permit and the Company has no reason to believe that any such Governmental Permit will not be renewed. Neither the Company, any of its
Subsidiaries nor, to the Company’s knowledge, any of their respective directors, officers, employees or agents has been convicted
of any crime under any Applicable Laws or has been the subject of an FDA debarment proceeding. Neither the Company nor any of its Subsidiaries
has been nor is now subject to the FDA’s Application Integrity Policy. To the Company’s knowledge, neither the Company, any
of its Subsidiaries nor any of its directors, officers, employees or agents has made, or caused the making of, any false statements on,
or material omissions from, any other records or documentation prepared or maintained to comply with the requirements of the FDA or any
other governmental authority.
(ggg)
None of the Company’s or the Subsidiaries’ product candidates have received marketing approval from the FDA or any other
federal, state, local or foreign governmental or regulatory authority
(hhh)
The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent permitted under the Securities
Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement is in effect; provided,
that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may engage
in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent, except as may be
otherwise agreed by the Company and the Agent.
(iii)
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and technical databases owned or leased by, or licensed to, the Company and its Subsidiaries (collectively, “IT
Systems”) are adequate for, and operate and perform, in each case, in all material respects, as required in connection
with the operation of the business of the Company and its Subsidiaries as currently conducted, and, to the Company’s knowledge,
are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its
Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures,
and safeguards designed to maintain and protect their material confidential information and Personal Data and the integrity, operation,
redundancy and security of all IT Systems . “Personal Data” means, to the extent in the Company or its Subsidiaries’
possession, custody, or control, (i) a natural person’s name, street address, telephone number, e-mail address, photograph of such
person, social security number or tax identification number, driver’s license number, passport number, credit card number, bank
information, or customer or account number; (ii) any information which would qualify as “personally identifying information”
under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR (defined below); (iv) any information
which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996,
as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
and (v) any other information that constitutes “personal data,” “personal information,” or similar terms as defined
under applicable Privacy Laws (defined below). To the Company’s knowledge, there have been no breaches, violations, outages or
unauthorized uses of or accesses to Personal Data or IT Systems, except for those that have been remedied without material cost or liability
or the duty to notify any other person, nor any currently ongoing internal review or investigation relating to the same. The Company
and its Subsidiaries are presently in material compliance with all binding judgments and orders of any court or arbitrator or governmental
or regulatory authority and contractual obligations relating to the privacy and security of IT Systems and Personal Data.
(jjj)
The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable state and federal data privacy and
security laws and regulations, including without limitation to the extent applicable HIPAA, and the European Union General Data Protection
Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”) except as could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company and its Subsidiaries have in place, comply
with, and take steps reasonably designed to ensure compliance in all material respects with their external, public-facing policies relating
to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Privacy
Policies”). The Company and its Subsidiaries have at all times made all material disclosures to users or customers required
by applicable Privacy Laws, and none of such disclosures made or contained in any Privacy Policy have, to the knowledge of the Company,
been inaccurate or in violation of any applicable Privacy Laws in any material respect. Neither the Company nor any Subsidiary: (i) has
received written notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy
Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently
conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action conducted or ordered by any
governmental body pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement imposed or issued by any governmental
body that imposes any material obligation or liability under any Privacy Law.
Any
certificate signed by any officer of the Company and delivered to the Agent or its counsel in connection with the offering of the Placement
Shares shall be deemed a representation and warranty by the Company, as to matters covered thereby, to the Agent.
7.
Covenants of the Company. The Company covenants and agrees with the Agent that:
(a)
Registration Statement Amendments. After the date of this Agreement and during any period in which the Prospectus relating to
any Placement Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act or a similar rule); (i) the Company will notify the Agent promptly of
the time when any subsequent amendment to the Registration Statement, other than Incorporated Documents, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus, other than Incorporated Documents, has been filed and of
any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information;
(ii) the Company will prepare and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to
the Registration Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with
the distribution of the Placement Shares by the Agent (provided, however, that the failure of the Agent to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure by
the Company to make such filing (but without limiting the Agent’s rights under Section 9 hereof) will be to cease making sales
under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus, other than Incorporated Documents, relating to the Placement Shares or a security convertible into
or exchangeable or exercisable for the Placement Shares unless a copy thereof has been submitted to the Agent within a reasonable period
of time before the filing and the Agent has not reasonably objected thereto (provided, however, that the failure of the Agent to make
such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the
representations and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have
with respect to the Company’s making such filing notwithstanding the Agent’s objection (but without limiting the Agent’s
rights under Section 9 hereof) will be to cease making sales under this Agreement) and the Company will furnish to the Agent at the time
of filing thereof a copy of any Incorporated Document, except for those documents available via EDGAR; and (iv) the Company will cause
each amendment or supplement to the Prospectus, other than Incorporated Documents, to be filed with the Commission as required pursuant
to the applicable paragraph of Rule 424(b) of the Securities Act and, in the case of any Incorporated Document, to be filed with the
Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment
or supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion or objections, shall be made
exclusively by the Company).
(b)
Notice of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement related to the Placement Shares or any amendment or supplements
to the Prospectus or for additional information related to the offering of the Placement Shares or for additional information related
to the Registration Statement or the Prospectus, in each case, with respect to the Placement Shares.
(c)
Delivery of Prospectus; Subsequent Changes. During any period in which the Prospectus relating to the Placement Shares is required
to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or a similar rule), the Company will comply in
all material respects with all requirements imposed upon it by the Securities Act, as from time to time in force, and will file on or
before their respective due dates (taking into account any extensions available under the Exchange Act) all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d)
or any other provision of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend the
offering of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus
(at the expense of the Company) so as to correct such statement or omission or effect such compliance. If the Company has omitted any
information with respect to the Placement Shares from the Registration Statement pursuant to Rule 430B under the Securities Act, it will
use its reasonable best efforts to comply with the provisions thereof and make all requisite filings with the Commission pursuant to
said Rule 430B and to notify the Agent promptly of all such filings if not available on EDGAR.
(d)
Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or a similar rule), the Company will use its commercially
reasonable efforts to cause the Placement Shares to be listed on Nasdaq. The Company will timely file with Nasdaq all material documents
and notices required by Nasdaq of companies that have or will issue securities that are traded on Nasdaq.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the
Company) copies of the Registration Statement, the Prospectus (including all Incorporated Documents) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission during any period in which the Prospectus relating to
the Placement Shares is required to be delivered under the Securities Act (including all Incorporated Documents filed with the Commission
during such period), in each case as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably
request and, at the Agent’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of the
Placement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other
than the Prospectus) to the Agent to the extent such document is available on EDGAR.
(f)
Earnings Statement. The Company will make generally available to its security holders and to the Agent as soon as practicable,
an earnings statement covering a 12-month period that satisfies the provisions of Section 11(a) of and Rule 158 under the Securities
Act.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated
in accordance with the provisions of Section 11 hereunder, will pay all expenses incident to the performance of its obligations hereunder,
including expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment and supplement
thereto, of the Prospectus and of each amendment and supplement thereto and of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (ii) the preparation, issuance, sale and
delivery of the Placement Shares and any taxes due or payable in connection therewith, (iii) the qualification of the Placement Shares
under securities laws in accordance with the provisions of Section 7(w) of this Agreement, including filing fees (provided, however,
that any fees or disbursements of counsel for the Agent in connection therewith shall be paid by the Agent except as set forth in clauses
(vii) and (viii) below), (iv) the printing and delivery to the Agent and its counsel of copies of the Prospectus and any amendments or
supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection with the listing or qualification of the
Placement Shares for trading on Nasdaq, (vi) the filing fees and expenses, if any, owed to the Commission or FINRA and the fees and expenses
of any transfer agent or registrar for the Placement Shares, (vii) the fees and associated expenses of the Agent’s outside legal
counsel for filings with the FINRA Corporate Financing Department in an amount not to exceed $15,000 (excluding the FINRA filing fees
referred to in clause (vi) above and in addition to the fees and disbursements referred to in clause (viii) below), and (viii) the reasonable
fees and disbursements of the Agent’s outside legal counsel (A) in an amount not to exceed $75,000 arising out of executing this
Agreement and the Company’s delivery of the initial certificate pursuant to Section 7(m) and (B) in an amount not to exceed $25,000
in connection with each Representation Date (as defined below) on which the Company is required to provide a certificate pursuant to
Section 7(m) or the last sentence of Section 3 (in addition to the fees and associated expenses referred to in clause (vii) above.
(h)
Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i)
Notice of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to
sell, sell, contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement Shares
offered pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants
or any rights to purchase or acquire shares of Common Stock during the period beginning on the third Trading Day immediately prior to
the date on which any Placement Notice is delivered to Agent hereunder and ending on the second Trading Day immediately following the
final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated
or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and
will not directly or indirectly in any other “at the market offering” or continuous equity transaction offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Placement Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants or any
rights to purchase or acquire, shares of Common Stock prior to the later of the termination of this Agreement and the thirtieth day immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided, however,
that such restrictions will not be required in connection with the Company’s issuance or sale of (i) shares of Common Stock, options
to purchase shares of Common Stock, other securities under the Company’s existing equity incentive plans, or shares of Common Stock
issuable upon the exercise of options or vesting of other securities, pursuant to any employee or director stock option or benefits plan,
stock ownership plan or dividend reinvestment plan (but not shares of Common Stock subject to a waiver to exceed plan limits in its dividend
reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) shares of Common Stock issuable upon conversion
of securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company
available on EDGAR or otherwise in writing to the Agent and (iii) shares of Common Stock or securities convertible into or exchangeable
for shares of Common Stock as consideration for mergers, acquisitions, other business combinations or strategic alliances occurring after
the date of this Agreement which are not issued for capital raising purposes.
(j)
Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Shares, advise the Agent promptly after it shall have received notice or obtained knowledge of any information
or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided or required to
be provided to the Agent pursuant to this Agreement.
(k)
Due Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due diligence review
conducted by the Agent, its affiliates agents and counsel from time to time in connection with the transactions contemplated hereby,
including providing information and making available documents and senior corporate officers, during regular business hours and at the
Company’s principal offices, as the Agent may reasonably request.
(l)
Required Filings Relating to Placement of Placement Shares. The Company agrees that on or prior to such dates as the Securities
Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b)
under the Securities Act, which prospectus supplement will set forth, within the relevant period, the number or amount of Placement Shares
sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such
Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such
sales were effected as may be required by the rules or regulations of such exchange or market; provided, that, unless a prospectus
supplement containing such information is required to be filed under the Securities Act, the requirement of this Section 7(l) may be
satisfied by Company’s inclusion in the Company’s Form 10-K or Form 10-Q, as applicable, of the number or amount of Placement
Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect
to such Placement Shares during the relevant period.
(m)
Representation Dates; Certificate. On or prior to the date on which the Company first delivers a Placement Notice pursuant to
this agreement (the “First Placement Notice Date”) and each time the Company:
(i)
amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares)
the Registration Statement or the Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance
with Section 7(l) of this Agreement) by means of a post-effective amendment, sticker or supplement but not by means of incorporation
of document(s) by reference into the Registration Statement or the Prospectus relating to the Placement Shares;
(ii)
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material
amendment to the previously filed Form 10-K);
(iii)
files a quarterly report on Form 10-Q under the Exchange Act; or
(iv)
files a current report on Form 8-K containing amended financial information (other than an earnings release that is “furnished”
pursuant to Item 2.02 or Item 7.01 of Form 8-K) under the Exchange Act (each date of filing of one or more of the documents referred
to in clauses (i) through (iv) shall be a “Representation Date”), the Company shall furnish the Agent (but
in the case of clause (iv) above, only if a Placement Notice is pending or in effect, with a certificate, in the form attached hereto
as Exhibit 7(m) (modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented), within two Trading Days of any Representation Date. The requirement to provide a certificate under this Section 7(m) shall
be waived for any Representation Date occurring at a time at which no Placement Notice is pending or in effect, which waiver shall continue
until the earlier to occur of (1) the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be
considered a Representation Date) and (2) the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently
decides to sell Placement Shares following a Representation Date on which the Company relied on the waiver referred to in the previous
sentence and did not provide the Agent with a certificate under this Section 7(m), then before the Company delivers a Placement Notice
or the Agent sells any Placement Shares pursuant thereto, the Company shall provide the Agent with a certificate, in the form attached
hereto as Exhibit 7(m), dated the date of such Placement Notice. Within two Trading Days of each Representation Date, the
Company shall have furnished to the Agent such further information, certificates and documents as the Agent may reasonably request.
(n)
Legal Opinions. On or prior to the First Placement Notice Date and on any date which the Company is obligated to deliver a certificate
pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause to be furnished to the Agent the written opinion
and negative assurance letter of Cooley LLP, counsel to the Company, or such other counsel satisfactory to the Agent (“Company
Counsel”), in form and substance satisfactory to the Agent and its counsel, dated the date that the opinion and negative
assurance letter are required to be delivered, modified, as necessary, to relate to the Registration Statement and the Prospectus as
then amended or supplemented; provided, however, that in lieu of such opinion and negative assurance letter for subsequent
Representation Dates, Company Counsel may furnish the Agent with a letter to the effect that the Agent may rely on a prior opinion or
negative assurance letter delivered by such counsel under this Section 7(n) to the same extent as if it were dated the date of such letter
(except that statements in such prior opinion or negative assurance letter shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date).
(o)
Intellectual Property Opinion. On or prior to the First Placement Notice Date and on any date which the Company is obligated to
deliver a certificate pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause to be furnished to the Agent
the written opinion of Womble Bond Dickinson (US) LLP, counsel for the Company with respect to intellectual property matters, or such
other intellectual property counsel satisfactory to the Agent (“Intellectual Property Counsel”), in form and
substance satisfactory to the Agent and its counsel, dated the date that the opinion letter is required to be delivered, modified, as
necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however,
that in lieu of such written opinion for subsequent Representation Dates, Intellectual Property Counsel may furnish the Agent with a
letter to the effect that the Agent may rely on a prior opinion letter delivered by such counsel under this Section 7(o) to the same
extent as if it were dated the date of such opinion letter (except that statements in such prior opinion letter shall be deemed to relate
to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(p)
Comfort Letter. On or prior to the First Placement Notice Date and on any date which the Company is obligated to deliver a certificate
pursuant to Section 7(m) for which no waiver is applicable, the Company shall cause its independent registered public accounting firm
(and any other independent accountants whose report is included in the Registration Statement or the Prospectus) to furnish the Agent
letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements
set forth in this Section 7(p); provided, that if requested by the Agent, the Company shall cause a Comfort Letter to be furnished
to the Agent within 10 Trading Days of the occurrence of any material transaction or event that necessitates the filing of additional,
pro forma, amended or revised financial statements (including any restatement of previously issued financial statements). Each Comfort
Letter shall be in form and substance satisfactory to the Agent and each Comfort Letter from the Company’s independent registered
public accounting firm shall (i) confirm that they are an independent registered public accounting firm within the meaning of the Securities
Act and the PCAOB, (ii) state, as of such date, the conclusions and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”) and (iii) update the Initial Comfort Letter
with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary
to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(q)
Market Activities. The Company will not, directly or indirectly, and will cause its officers, directors and Subsidiaries not to
(i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of shares of Common Stock or (ii) sell,
bid for, or purchase shares of Common Stock in violation of Regulation M, or pay anyone any compensation for soliciting purchases of
the Placement Shares other than the Agent; provided, however, that the Company may bid for and purchase shares of Common
Stock in accordance with Rule 10b-18 under the Exchange Act.
(r)
Insurance. The Company and its Subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering
such risks as is reasonable and customary for the business for which it is engaged.
(s)
Compliance with Laws. The Company and each of its Subsidiaries shall maintain, or cause to be maintained, all Permits, and the
Company and each of its Subsidiaries shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance
with such Permits and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such Permits
could not reasonably be expected to result in a Material Adverse Effect.
(t)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any
of its Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as
such term is defined in the Investment Company Act.
(u)
Securities Act and Exchange Act. The Company will use its reasonable best efforts to comply with all requirements imposed upon
it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the sales of, or dealings
in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(v)
No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance by
the Company and the Agent, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity
as agent) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities
Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares
hereunder.
(w)
Blue Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under
the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for
less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(x)
Sarbanes-Oxley Act. The Company will maintain and keep accurate books and records reflecting its assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and including those policies and procedures that (i) pertain to
the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of
the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
financial statements in accordance with GAAP, (iii) that receipts and expenditures of the Company are being made only in accordance with
management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention
or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on
its financial statements. The Company will maintain such controls and other procedures, including, without limitation, those required
by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and principal
financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and
to ensure that material information relating to the Company is made known to it by others within the Company, particularly during the
period in which such periodic reports are being prepared.
(y)
Emerging Growth Company. The Company will promptly notify the Agent if the Company ceases to be an Emerging Growth Company at
any time prior to the completion of the Agent’s distribution of the Placement Shares pursuant to this Agreement.
(z) Renewal
of Registration Statement. If, immediately prior to the third anniversary of the initial effective date of the Registration
Statement (the “Renewal Date”), any of the Placement Shares remain unsold, this Agreement has not been
terminated and a Placement Notice is pending or in effect, the Company will, prior to the Renewal Date, file a new shelf
registration statement or, if applicable, an automatic shelf registration statement relating to the Common Stock that may be offered
and sold pursuant to this Agreement (which shall include a prospectus reflecting the number or amount of Placement Shares that may
be offered and sold pursuant to this Agreement), in a form satisfactory to the Agent and its counsel, and, if such registration
statement is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Date. The Company will take all other reasonable actions necessary or
appropriate to permit the public offer and sale of the Placement Shares to continue as contemplated in the expired registration
statement and this Agreement. From and after the effective date thereof, references herein to the “Registration
Statement” shall include such new shelf registration statement or such new automatic shelf registration statement, as the case
may be.
(aa)
General Instruction I.B.6. of Form S-3. If, from and after the date of this Agreement, the Company is no longer eligible to use
Form S-3 (including pursuant to General Instruction I.B.6.) at the time it files with the Commission an annual report on Form 10-K or
any post-effective amendment to the Registration Statement, then it shall promptly notify the Agent and, within two Business Days after
the date of filing of such annual report on Form 10-K or amendment to the Registration Statement, the Company shall file a new prospectus
supplement with the Commission reflecting the number of shares of Common Stock available to be offered and sold by the Company under
this Agreement pursuant to General Instruction I.B.6. of Form S-3; provided, however, that the Company may delay the filing
of any such prospectus supplement for up to 30 days if, in the reasonable judgment of the Company, it is in the best interest of the
Company to do so, provided that no Placement Notice is in effect or pending during such time. Until such time as the Company shall have
corrected such misstatement or omission or effected such compliance, the Company shall not notify the Agent to resume the offering of
Placement Shares.
(bb)
Tax Indemnity. The Company will indemnify and hold harmless the Agent against any documentary, stamp or similar issue tax, including
any interest and penalties, on the issue and sale of the Placement Shares.
(cc)
Transfer Agent. The Company has engaged and will maintain, at its sole expense, a transfer agent and registrar for the Common
Stock.
8.
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance
by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to the Agent in its
reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a)
Registration Statement Effective. The Registration Statement shall be effective and shall be available for all offers and sales
of Placement Shares (i) that have been issued pursuant to all prior Placement Notices and (ii) that will be issued pursuant to any Placement
Notice.
(b)
[RESERVED]
(c)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its Subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii)
receipt by the Company or any of its Subsidiaries of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus
or any material Incorporated Document untrue in any material respect or that requires the making of any changes in the Registration Statement,
the Prospectus or Incorporated Documents so that, in the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, in the case of the Prospectus, so that it will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(d)
No Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s opinion is material, or omits
to state a fact that in the Agent’s opinion is material and is required to be stated therein or is necessary to make the statements
therein not misleading.
(e)
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission,
there shall not have been any Material Adverse Effect, on a consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Effect or any development that would reasonably be expected to result in a Material Adverse Effect, or any downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities), if any, by any
rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of
the Company’s securities (other than asset backed securities), if any, the effect of which, in the judgment of the Agent (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(f)
Company Counsel Legal Opinions. The Agent shall have received the opinions and negative assurance letters, as applicable, of Company
Counsel and Intellectual Property Counsel required to be delivered pursuant to Section 7(n) and Section 7(o), as applicable, on or before
the date on which such delivery of such opinions and negative assurance letters are required pursuant to Section 7(n) and Section 7(o),
as applicable.
(g)
Agent’s Counsel Legal Opinion. The Agent shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel
for the Agent, such opinion or opinions, on or before the date on which the delivery of the Company Counsel legal opinion is required
pursuant to Section 7(n), with respect to such matters as the Agent may reasonably require, and the Company shall have furnished to such
counsel such documents as they may request to enable them to pass upon such matters.
(h)
Comfort Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(p) on or before
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(p).
(i)
Officers’ Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(m) on
or before the date on which delivery of such certificate is required pursuant to Section 7(m).
(j)
Secretary’s Certificate. On or prior to the First Placement Notice Date, the Agent shall have received a certificate, signed
on behalf of the Company by the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date
and in form and substance satisfactory to the Agent and its counsel, certifying as to (i) the amended and restated certificate of incorporation
of the Company, (ii) the amended and restated bylaws of the Company, (iii) the resolutions of the board of directors of the Company or
duly authorized committee thereof authorizing the execution, delivery and performance of this Agreement and the issuance and sale of
the Placement Shares and (iv) the incumbency of the officers of the Company duly authorized to execute this Agreement and the other documents
contemplated by this Agreement (including each of the officers set forth on Schedule 2).
(k)
No Suspension. The Common Stock shall be duly listed, and admitted and authorized for trading, subject to official notice of issuance,
on Nasdaq. Trading in the Common Stock shall not have been suspended on, and the Common Stock shall not have been delisted from, Nasdaq.
(l)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent
may have reasonably requested. All such information, opinions, certificates, letters and other documents shall have been in compliance
with the provisions hereof. The Company shall have furnished the Agent with conformed copies of such opinions, certificates, letters
and other documents as the Agent may have reasonably requested.
(m)
Securities Act Filings Made. All filings with the Commission required by Rule 424(b) or Rule 433 under the Securities Act to have
been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed
for such filing by Rule 424(b) (without reliance on Rule 424(b)(8) of the Securities Act) or Rule 433, as applicable.
(n)
Approval for Listing. Either (i) the Placement Shares shall have been approved for listing on Nasdaq, subject only to notice of
issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to, the First
Placement Notice Date and Nasdaq shall have reviewed such application and not provided any objections thereto.
(o)
FINRA. FINRA shall have raised no objection to the terms of the offering contemplated hereby and the amount of compensation allowable
or payable to the Agent as described in the Prospectus.
(p)
No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant
to Section 11(a).
9.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners,
members, directors, officers, employees and agents, and each person, if any, who (i) controls the Agent within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Agent, in each
case from and against any and all losses, claims, liabilities, expenses and damages (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in settlement (in accordance with this Section 9), any
action, suit, investigation or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified
party and any third party (including any governmental or self-regulatory authority, or otherwise, or any claim asserted or threatened),
as and when incurred, to which the Agent, or any such other person may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus (or any amendment or supplement to the Registration Statement or the Prospectus) or in
any free writing prospectus or in any application or other document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof
or filed with the Commission, (y) the omission or alleged omission to state in any such document a material fact required to be stated
therein or necessary to make the statements therein (solely with respect to the Prospectus, in light of the circumstances under which
they were made) not misleading or (z) any breach by any of the indemnifying parties of any of their respective representations, warranties
or agreements contained in this Agreement; provided, however, that this indemnity agreement shall not apply to the extent
that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares pursuant to this Agreement and is caused,
directly or indirectly, by an untrue statement or omission, or alleged untrue statement or omission, made in reliance upon and in conformity
with the Agent’s information. This indemnity agreement will be in addition to any liability that the Company might otherwise have.
(b)
Agent Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any and
all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto)
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Agent’s Information.
(c)
Procedure. Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have
to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any indemnified party under the
foregoing provision of this Section 9 unless, and only to the extent that, such omission results in the forfeiture of substantive rights
or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party
of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to
it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense
of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one separate firm (plus local counsel) admitted to practice in
such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly after the indemnifying party receives a written invoice relating to such fees, disbursements and other
charges in reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes
an unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such claim, action or proceeding and (2) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d)
Settlement Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses of counsel for which it is entitled to be reimbursed under this Section
9, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 9(a) effected without
its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(e)
Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for
in the foregoing paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable
or insufficient from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit, investigation or proceeding or any claim asserted) to which the Company and the Agent may be subject in such proportion
as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The
relative benefits received by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion
as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total
compensation received by the Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one
hand, and the Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense
or damage, or action, suit, investigation or proceeding in respect thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions pursuant to this Section
9(e) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense
or damage, or action, suit, investigation or proceeding in respect thereof, referred to above in this Section 9(e) shall be deemed to
include, for the purpose of this Section 9(e), any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action, suit, investigation, proceeding or claim to the extent consistent with this Section
9. Notwithstanding the foregoing provisions of this Section 9(e), the Agent shall not be required to contribute any amount in excess
of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9(e), any person who controls a party to this Agreement within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, any affiliates of the Agent, any partners, members, directors, officers, employees and agents
of the Agent and each person that is controlled by or under common control with the Agent will have the same rights to contribution as
that party, and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for contribution may be made under this Section 9(e), will notify any such
party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under this Section 9(e) except to the extent that the failure
to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof or pursuant to Section 9(d) hereof, no party
will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant
to Section 9(c) hereof.
10.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their
respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or
any of their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares
and payment therefor or (iii) any termination of this Agreement.
11.
Termination.
(a)
The Agent shall have the right, by giving notice as hereinafter specified, at any time to terminate this Agreement if (i) any Material
Adverse Effect, or any development that would reasonably be expected to result in a Material Adverse Effect, has occurred that, in the
judgment of the Agent, may materially impair the ability of the Agent to sell the Placement Shares hereunder, (ii) the Company shall
have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however,
in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion or letter required
under Section 7(m), Section 7(n), Section 7(o) or Section 7(p), the Agent’s right to terminate shall not arise unless such failure
to deliver (or cause to be delivered) continues for more than 30 calendar days from the date such delivery was required, (iii) any other
condition of the Agent’s obligations hereunder is not fulfilled, (iv) any suspension or limitation of trading in the Placement
Shares or in securities generally on Nasdaq shall have occurred, (v) a general banking moratorium shall have been declared by any of
United States federal or New York authorities, or (vi) there shall have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change
or development involving a prospective substantial change in United States or international political, financial or economic conditions
that, in the judgment of the Agent, may materially impair the ability of the Agent to sell the Placement Shares hereunder or to enforce
contracts for the sale of securities. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination. If the Agent elects to terminate this Agreement as provided in this Section 11(a), the Agent shall provide the required
notice as specified in Section 12.
(b)
The Company shall have the right, by giving five days’ prior notice as hereinafter specified, to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain
in full force and effect notwithstanding such termination.
(c)
The Agent shall have the right, by giving five days’ prior notice as hereinafter specified, to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain
in full force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of all
of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided that the provisions
of Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding
such termination.
(e)
This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d) above or otherwise
by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases
be deemed to provide that Section 7(g), Section 9, Section 10, Section 11(f), Section 16 and Section 17 shall remain in full force and
effect.
(f)
Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that
such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement. Upon termination of this Agreement, the Company shall not be required
to pay to the Agent any discount or commission with respect to any Placement Shares not otherwise sold by the Agent under this Agreement;
provided, however, that the Company shall remain obligated to reimburse the Agent’s expenses incurred through the
date of termination pursuant to Section 7(g).
12.
Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant to the
terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to the Agent, shall be delivered
to:
Guggenheim
Securities, LLC
330
Madison Avenue
New
York, NY 10017
Attention:
Shiv Taylor
E-mail:
Shiv.Taylor@guggenheimpartners.com
with
a copy (which shall not constitute notice) to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One
Financial Center
Boston,
MA 02111
Attention:
William C. Hicks
Email:
WCHicks@mintz.com
and
if to the Company, shall be delivered to:
Genelux
Corporation
2625
Townsgate Road, Suite 230
Westlake
Village, CA 91361
Attention:
Thomas Zindrick
Email:
ThomasZindrick@genelux.com
with
copies (which shall not constitute notice) to:
Cooley
LLP
4401
Eastgate Mall
San
Diego, CA 92121
Attention:
Jason Kent and Christine Kim
Email:
jkent@cooley.com and cskim@cooley.com
Each
party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address
for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally on or before 4:30 P.M.,
New York City time, on a Business Day, or, if such day is not a Business Day, on the next succeeding Business Day, (ii) by Electronic
Notice as set forth in the next paragraph, (iii) on the next Business Day after timely delivery to a nationally-recognized overnight
courier or (iv) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Nasdaq and
commercial banks in the City of New York are open for business.
An
electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section
12 if sent to the electronic mail address specified by the receiving party in Section 12. Electronic Notice shall be deemed received
at the time the party sending Electronic Notice receives actual acknowledgment of receipt from the person whom the notice is sent, other
than via auto-reply. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic
form (“Nonelectronic Notice”), which shall be sent to the requesting party within 10 days of receipt of the
written request for Nonelectronic Notice.
13.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the affiliates, controlling persons, officers, directors and other persons referred to in Section 9 hereof. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of each such party.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto, the persons referred
to in the preceding sentence and their respective successors and permitted assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party; provided, however, that the Agent may assign its rights and
obligations hereunder to an affiliate of the Agent without obtaining the Company’s consent, so long as such affiliate is a registered
broker-dealer.
14.
Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall
be adjusted to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15.
Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules (as amended pursuant to this Agreement)
and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other
prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and
the Agent; provided, however, that Schedule 2 of this Agreement may be amended by either party from time
to time by sending a notice containing a revised Schedule 2 to the other party in the manner provided in Section 12 and,
upon such amendment, all references herein to Schedule 2 shall automatically be deemed to refer to such amended Schedule
2. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and
effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall
be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving
effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as
reflected in this Agreement. No implied waiver by a party shall arise in the absence of a waiver in writing signed by such party. No
failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
16.
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH
PARTY 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17.
Consent to Jurisdiction. 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 with any of the transactions
contemplated hereby, 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 (certified or registered mail, return receipt
requested) to such party at the address in effect for notices under Section 12 of this Agreement and agrees that such service shall constitute
good and sufficient notice 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.
18.
Construction.
(a)
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof.
(b)
Words defined in the singular shall have a comparable meaning when used in the plural, and vice versa.
(c)
The words “hereof,” “hereto,” “herein” and “hereunder” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(d)
Wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed
to be followed by the words “without limitation.”
(e)
References herein to any gender shall include each other gender.
(f)
References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be
deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended,
reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
19.
Permitted Free Writing Prospectuses. Each of the Company and the Agent represents, warrants and agrees that, unless it obtains
the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, it has not made
and will not make any offer relating to the Placement Shares that would constitute an issuer free writing prospectus, or that would otherwise
constitute a free writing prospectus (as defined in Rule 405), required to be filed with the Commission. Any such free writing prospectus
consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an issuer free writing prospectus, and that it has complied and will comply with the requirements of Rule 433 applicable
to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
20.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
the Agent has been retained to act as sales agent in connection with the sale of the Placement Shares, the Agent has acted at arms’
length and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity
holders), creditors or employees or any other party, on the one hand, and the Agent, on the other hand, has been or will be created in
respect of any of the transactions contemplated by this Agreement, irrespective of whether the Agent has advised or is advising the Company
on other matters and the Agent has no duties or obligations to the Company with respect to the transactions contemplated by this Agreement
except the obligations expressly set forth herein;
(b)
the Company is capable of evaluating, and understanding and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c)
neither the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d)
the Company has been advised and is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and that the Agent and its affiliates have no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise, provided that the Agent hereby
agrees not to engage in any such transaction which would be prohibited under Regulation M; and
(e)
the Company waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of
fiduciary duty or alleged breach of fiduciary duty in connection with the transactions contemplated by this Agreement and agrees that
the Agent and its affiliates shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary claim
or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders (or other equity holders),
creditors or employees of the Company.
21.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made
by facsimile or electronic transmission. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g.,www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes.
22.
Agent’s Information. As used in this Agreement, “Agent’s Information” means solely the following
information in the Registration Statement and the Prospectus: the first sentence of the seventh paragraph and the ninth paragraph
under the heading “Plan of Distribution” in the Sales Prospectus.
All
references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to EDGAR. All references in this Agreement to financial statements and
schedules and other information that is “contained,” “included” or “stated” in the Registration Statement
or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules
and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
All
references in this Agreement to “supplements” to the Prospectus shall include any supplements, “wrappers” or
similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agent outside of
the United States.
[Remainder
of Page Intentionally Blank]
If
the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Agent.
| |
Very
truly yours, |
| |
|
| |
GENELUX
CORPORATION |
| |
|
|
| |
By: |
/s/
Thomas Zindrick |
| |
Name: |
President
and Chief Executive Officer |
| |
Title: |
Thomas
Zindrick |
| |
|
|
| |
ACCEPTED
as of the date first-above written: |
| |
|
| |
GUGGENHEIM
SECURITIES, LLC |
| |
|
|
| |
By: |
/s/
Shiv Taylor, MD |
| |
Name: |
Shiv
Taylor, MD |
| |
Title: |
Senior
Managing Director |
[Signature
Page to Sales Agreement]
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
| From: |
Thomas
Zindrick |
| |
President
and Chief Executive Officer |
| |
GENELUX
CORPORATION |
| Cc: |
[
] |
| To: |
Guggenheim
Securities, LLC |
| Subject: |
Guggenheim
Securities, LLC—At the Market Offering—Placement Notice |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement, dated February 2, 2024 (the “Agreement”),
by and between Genelux Corporation, a Delaware corporation (the “Company”), and Guggenheim Securities, LLC
(“Guggenheim”), I hereby request on behalf of the Company that Guggenheim sell up to [ ] shares of common stock,
$0.001 par value per share, of the Company (the “Shares”), at a minimum market price of $ per share [; provided
that no more than [ ] Shares shall be sold in any one Trading Day (as such term is defined in Section 3 of the Agreement)]. Sales
should begin [on the date of this Placement Notice] and end on [DATE] [until all Shares that are the subject of this Placement Notice
are sold].
SCHEDULE
2
The
Company
Thomas
Zindrick – thomas.zindrick@genelux.com
Lourie
Zak – lourie.zak@genelux.com
Guggenheim
Securities, LLC
Shiv
Taylor - Shiv.Taylor@guggenheimpartners.com
James
Lee - James.Lee@guggenheimpartners.com
Michael
Jiang - Michael.Jiang@guggenheimpartners.com
SCHEDULE
3
Compensation
The
Company shall pay Guggenheim Securities, LLC compensation in cash equal to 3.0% of the gross proceeds from the sales of Placement Shares
pursuant to the terms of the Sales Agreement of which this Schedule 3 forms a part.
Exhibit
7(m)
OFFICERS’
CERTIFICATE
Each
of Thomas Zindrick, the duly qualified and elected President and Chief Executive Officer of Genelux Corporation, a Delaware corporation
(the “Company”), and Lourie Zak, the duly qualified and elected Chief Financial Officer of the Company, does
hereby certify in his respective capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement, dated February
2, 2024 (the “Sales Agreement”), by and between the Company and Guggenheim Securities, LLC, that, after
due inquiry, to the best of the knowledge of the undersigned:
(i)
The representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties
are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct
on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, and (B) to the extent
such representations and warranties are not subject to any qualifications or exceptions relating to materiality or Material Adverse Effect,
are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect
as if expressly made on and as of the date hereof.
(ii)
The Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof.
(iii)
As of the date hereof, (A) the Registration Statement complies in all material respects with the requirements of the Securities Act and
does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, (B) the Prospectus complies in all material respects with the requirements of
the Securities Act does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (C)
no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in order
to make the statements therein not untrue or misleading or for clauses (A) and (B) above, to be true and correct.
(iv)
There has been no Material Adverse Effect, or any development that would reasonably be expected to result in a Material Adverse Effect,
in the condition (financial or otherwise), earnings, results of operations, business, properties, operations, assets, liabilities or
prospects of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business,
since the date as of which information is given in the Prospectus, as amended or supplemented to the date hereof.
(v)
The Company does not possess any material non-public information.
(vi)
The maximum amount of Placement Shares that may be sold pursuant to the Sales Agreement has been duly authorized by the Company’s
board of directors or a duly authorized committee thereof pursuant to a resolution or unanimous written consent in accordance with the
Company’s amended and restated articles of incorporation, amended and restated bylaws and applicable law.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Sales Agreement.
IN
WITNESS WHEREOF, each of the undersigned, in such individual’s respective capacity as Chief Executive Officer or Chief Financial
Officer of the Company, has executed this Officers’ Certificate on behalf of the Company.
| |
By: |
|
| |
Name: |
Thomas
Zindrick |
| |
Title: |
President
and Chief Executive Officer |
| |
Date: |
|
| |
|
|
| |
By: |
|
| |
Name: |
Lourie
Zak |
| |
Title: |
Chief
Financial Officer |
| |
Date: |
|
Exhibit
4.14
GENELUX
CORPORATION,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated
as of [•], 20__
Debt
Securities
TABLE
OF CONTENTS
| |
|
PAGE |
| ARTICLE
1 DEFINITIONS |
1 |
| |
|
|
| Section
1.01 |
Definitions
of Terms |
1 |
| |
|
| ARTICLE
2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
|
|
| Section
2.01 |
Designation
and Terms of Securities |
5 |
| Section
2.02 |
Form
of Securities and Trustee’s Certificate |
7 |
| Section
2.03 |
Denominations:
Provisions for Payment |
8 |
| Section
2.04 |
Execution
and Authentications |
9 |
| Section
2.05 |
Registration
of Transfer and Exchange |
9 |
| Section
2.06 |
Temporary
Securities |
11 |
| Section
2.07 |
Mutilated,
Destroyed, Lost or Stolen Securities |
11 |
| Section
2.08 |
Cancellation |
12 |
| Section
2.09 |
Benefits
of Indenture |
12 |
| Section
2.10 |
Authenticating
Agent |
12 |
| Section
2.11 |
Global
Securities |
13 |
| Section
2.12 |
CUSIP
Numbers |
13 |
| |
|
| ARTICLE
3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
14 |
| |
|
|
| Section
3.01 |
Redemption |
14 |
| Section
3.02 |
Notice
of Redemption |
14 |
| Section
3.03 |
Payment
Upon Redemption |
15 |
| Section
3.04 |
Sinking
Fund |
15 |
| Section
3.05 |
Satisfaction
of Sinking Fund Payments with Securities |
16 |
| Section
3.06 |
Redemption
of Securities for Sinking Fund |
16 |
| |
|
| ARTICLE
4 COVENANTS |
16 |
| |
|
|
| Section
4.01 |
Payment
of Principal, Premium and Interest |
16 |
| Section
4.02 |
Maintenance
of Office or Agency |
17 |
| Section
4.03 |
Paying
Agents |
17 |
| Section
4.04 |
Appointment
to Fill Vacancy in Office of Trustee |
18 |
| |
|
| ARTICLE
5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
| |
|
|
| Section
5.01 |
Company
to Furnish Trustee Names and Addresses of Securityholders |
18 |
| Section
5.02 |
Preservation
Of Information; Communications With Securityholders |
18 |
| Section
5.03 |
Reports
by the Company |
19 |
| Section
5.04 |
Reports
by the Trustee |
19 |
TABLE
OF CONTENTS
(CONTINUED)
| |
|
PAGE |
| |
|
| ARTICLE
6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
19 |
| |
|
|
| Section
6.01 |
Events
of Default |
19 |
| Section
6.02 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
21 |
| Section
6.03 |
Application
of Moneys Collected |
22 |
| Section
6.04 |
Limitation
on Suits |
23 |
| Section
6.05 |
Rights
and Remedies Cumulative; Delay or Omission Not Waiver |
23 |
| Section
6.06 |
Control
by Securityholders |
24 |
| Section
6.07 |
Undertaking
to Pay Costs |
24 |
| |
|
| ARTICLE
7 CONCERNING THE TRUSTEE |
24 |
| |
|
|
| Section
7.01 |
Certain
Duties and Responsibilities of Trustee |
24 |
| Section
7.02 |
Certain
Rights of Trustee |
25 |
| Section
7.03 |
Trustee
Not Responsible for Recitals or Issuance or Securities |
27 |
| Section
7.04 |
May
Hold Securities |
28 |
| Section
7.05 |
Moneys
Held in Trust |
28 |
| Section
7.06 |
Compensation
and Reimbursement |
28 |
| Section
7.07 |
Reliance
on Officer’s Certificate |
29 |
| Section
7.08 |
Disqualification;
Conflicting Interests |
29 |
| Section
7.09 |
Corporate
Trustee Required; Eligibility |
29 |
| Section
7.10 |
Resignation
and Removal; Appointment of Successor |
29 |
| Section
7.11 |
Acceptance
of Appointment By Successor |
30 |
| Section
7.12 |
Merger,
Conversion, Consolidation or Succession to Business |
31 |
| Section
7.13 |
Preferential
Collection of Claims Against the Company |
32 |
| Section
7.14 |
Notice
of Default. |
32 |
| |
|
| ARTICLE
8 CONCERNING THE SECURITYHOLDERS |
32 |
| |
|
|
| Section
8.01 |
Evidence
of Action by Securityholders |
32 |
| Section
8.02 |
Proof
of Execution by Securityholders |
33 |
| Section
8.03 |
Who
May be Deemed Owners |
33 |
| Section
8.04 |
Certain
Securities Owned by Company Disregarded |
33 |
| Section
8.05 |
Actions
Binding on Future Securityholders |
34 |
TABLE
OF CONTENTS
(CONTINUED)
| |
|
PAGE |
| |
|
| ARTICLE
9 SUPPLEMENTAL INDENTURES |
34 |
| |
|
|
| Section
9.01 |
Supplemental
Indentures Without the Consent of Securityholders |
34 |
| Section
9.02 |
Supplemental
Indentures With Consent of Securityholders |
35 |
| Section
9.03 |
Effect
of Supplemental Indentures |
35 |
| Section
9.04 |
Securities
Affected by Supplemental Indentures |
36 |
| Section
9.05 |
Execution
of Supplemental Indentures |
36 |
| |
|
| ARTICLE
10 SUCCESSOR ENTITY |
36 |
| |
|
|
| Section
10.01 |
Company
May Consolidate, Etc. |
36 |
| Section
10.02 |
Successor
Entity Substituted |
37 |
| |
|
| ARTICLE
11 SATISFACTION AND DISCHARGE |
37 |
| |
|
|
| Section
11.01 |
Satisfaction
and Discharge of Indenture |
37 |
| Section
11.02 |
Discharge
of Obligations |
38 |
| Section
11.03 |
Deposited
Moneys to be Held in Trust |
38 |
| Section
11.04 |
Payment
of Moneys Held by Paying Agents |
38 |
| Section
11.05 |
Repayment
to Company |
38 |
| |
|
| ARTICLE
12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
39 |
| |
|
|
| Section
12.01 |
No
Recourse |
39 |
| |
|
| ARTICLE
13 MISCELLANEOUS PROVISIONS |
39 |
| |
|
|
| Section
13.01 |
Effect
on Successors and Assigns |
39 |
| Section
13.02 |
Actions
by Successor |
39 |
| Section
13.03 |
Surrender
of Company Powers |
39 |
| Section
13.04 |
Notices |
40 |
| Section
13.05 |
Governing
Law; Jury Trial Waiver |
40 |
| Section
13.06 |
Treatment
of Securities as Debt |
40 |
| Section
13.07 |
Certificates
and Opinions as to Conditions Precedent |
40 |
| Section
13.08 |
Payments
on Business Days |
41 |
| Section
13.09 |
Conflict
with Trust Indenture Act |
41 |
| Section
13.10 |
Counterparts |
41 |
| Section
13.11 |
Separability |
41 |
| Section
13.12 |
Compliance
Certificates |
41 |
| Section
13.13 |
Patriot
Act |
41 |
| Section
13.14 |
Force
Majeure |
41 |
| Section
13.12 |
Table
of Contents; Headings |
41 |
INDENTURE
INDENTURE,
dated as of [•], 20__, among Genelux Corporation, a Delaware corporation
(the “Company”), and [TRUSTEE], as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires), for all purposes of this Indenture and of any indenture supplemental hereto, shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such
certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Genelux Corporation, a corporation duly organized and existing under the laws
of the State of DELAWARE, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
The
term “given”, “mailed”, “notify” or “sent”
with respect to any notice to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary
(or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance
with accepted practices or procedures at the Depositary (in the case of a Global Security) or (y) mailed to such Holder by first class
mail, postage prepaid, at its address as it appears on the Security Register (in the case of a definitive Security). Notice so “given”
shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer thereof
at any time prior to the stated maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of
or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person
or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
“Trustee”
means _________________________, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The
term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that
series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
ARTICLE
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);
(3)
the maturity date or dates on which the principal of the Securities of the series is payable;
(4)
the form of the Securities of the series including the form of the certificate of authentication for such series;
(5)
the applicability of any guarantees;
(6)
whether or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7)
whether the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms
of any subordination;
(8)
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the
maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(9)
the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates;
(10)
the Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11)
if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions;
(12)
the date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking
fund or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are payable;
(13)
the denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14)
any and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16)
if applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which
may, without limitation, include the payment of cash as well as the delivery of securities;
(17)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18)
additions to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19)
additions to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the
Securityholders to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20)
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21)
additions to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22)
additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23)
the currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and
the terms and conditions upon which the election may be made;
(25)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(27)
any other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All
Securities of any one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth
in an Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due
upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered in the Security Register at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent, to each Securityholder not
less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record
date therefor having been sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered in the Security Register on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section
2.04 Execution and Authentications.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the
fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an
officer of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
Upon
the Company’s delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under
this Indenture, the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall
be fully protected in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that
all conditions precedent to the execution, authentication and delivery of such Securities are in conformity with the provisions of this
Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose,
for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided
shall be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
The
Company initially appoints the Trustee as initial Security Registrar for each series of Securities
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than
the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between
or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the Securityholders), at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities
of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if
surrendered to the Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities.
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication
by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws
to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the
Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of
the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and, subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Section
2.12 CUSIP Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class
postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable
procedures of the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for
redemption of that series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for
redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption
price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities
of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata
basis, or in such other manner as the Company shall deem appropriate and fair in its discretion and that may provide for the selection
of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing
of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities
of a particular series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption
is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with,
the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions
of this Section.
Section
3.03 Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed
for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of
the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the Company
shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal
on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn
on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar
wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15
days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established
with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall
appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire
instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be given or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed
by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.
The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section
4.03 Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company
or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
ARTICLE
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section
5.03 Reports by the Company.
(a)
The Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any
correspondence filed with the Commission or any materials for which the Company has sought and received confidential treatment by the
Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee
for purposes hereof without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file
annual reports, information and other reports with the Commission within the time period prescribed thereof by the Commission shall not
be deemed a breach of this Section 5.03.
(b)
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information
or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture
or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility
or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system)
has occurred.
Section
5.04 Reports by the Trustee.
(a)
If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the
Securityholders a brief report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on
all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities
of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of
a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take
any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such Securityholder or Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to
such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited
with the Trustee (in accordance with Section 6.01(c))). Upon any such waiver, the default covered thereby shall be deemed to be
cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant
to this Indenture.
ARTICLE
7
CONCERNING
THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(ii)
the Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv)
none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi)
The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii)
No Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series
of Securities hereunder.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);
(c)
The Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered
to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to
the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not
less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to
the Trustee against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h)
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i)
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action; and
(j)
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed by
an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions,
the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs
or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding
such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to furnish the Trustee with Officer’s Certificates, Company Orders and any other matters or
directions pursuant to this Indenture.
(k)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities,
and each agent, custodian or other person employed to act under this Indenture.
(l)
The Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting
the failure to pay the interest on, or the principal of, the Securities if the Trustee also serves the paying agent for such Securities)
until the Trustee shall have received written notification in the manner set forth in this Indenture or a Responsible Officer of the
Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or
any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or
any action or omission of any rating agency.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b)
The Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred
by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
(c)
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through negligence or bad faith.
(d)
To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this Indenture
and the resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least
six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession
of such trustee hereunder to the Securityholders. If the Company fails to transmit such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act
to the extent included therein.
Section
7.14 Notice of Default.
If
any Event of Default occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall send to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the
Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except
in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute
owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article Ten;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures with Consent of Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities
of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized
or permitted by the terms of this Article and that all conditions precedent to the execution of the supplemental indenture have been
complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection with
the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby .as their names and addresses appear upon the Security Register. Any failure of the
Company to send, or cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
ARTICLE
10
SUCCESSOR
ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors);
provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company
is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance,
transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property.
Section
10.02 Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.10, 11.5 and 13.04, that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee,
on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS
PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 2625
Townsgate Road, Suite 230, Westlake Village, CA 91361. Any notice, election, request or demand by the Company or any Securityholder or
by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law; Jury Trial Waiver.
This
Indenture and each Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if
requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1)
of the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the
Trust Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
Section
13.11 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance
under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any
such Event of Default and its status.
Section
13.13 U.S.A Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section
13.14 Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this
Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section
13.15 Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| Genelux Corporation |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| |
|
|
| [TRUSTEE], as Trustee |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
CROSS-REFERENCE
TABLE (1)
| Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions. |
Exhibit
4.17
Genelux
Corporation
AND
_____________,
AS WARRANT AGENT
FORM
OF COMMON STOCK
WARRANT
AGREEMENT
DATED
AS OF __________
GENELUX
CORPORATION
FORM
OF COMMON STOCK WARRANT AGREEMENT
THIS
COMMON STOCK WARRANT AGREEMENT (this “Agreement”), dated as of [●], between Genelux
Corporation, a Delaware corporation (the “Company”), and [●], a [corporation] [national banking
association] organized and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent (the
“Warrant Agent”).
WHEREAS,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase Common Stock of the Company, par value $0.001
per share (the “Warrant Securities”), such warrant certificates and other warrant certificates issued pursuant
to this Agreement being herein called the “Warrant Certificates”; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes
to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may
be issued, registered, transferred, exchanged, exercised and replaced.
NOW
THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE
1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY
OF WARRANT CERTIFICATES
1.1
Issuance of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance
of the Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each
Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2
Execution and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers, presidents,
senior vice presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers,
assistant controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual
or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In
case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent,
such Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased
to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The
term “holder” or “holder of a Warrant Certificate” as used herein shall mean any
person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for
that purpose.
1.3
Issuance of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the Company.
ARTICLE
2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1
Warrant Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable
Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant Certificate
at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2
Duration of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant
Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3
Exercise of Warrants.
(a)
During the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received
by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named
as the holder of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record
of such Warrant Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the
Warrant Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in
respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer
books shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities.
The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with
it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b)
The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information
as the Company shall reasonably require.
(c)
As soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered in
such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d)
The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other charge is due.
(e)
Prior to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the
Warrants.
ARTICLE
3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1
No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights, except to the
extent expressly set forth in this Agreement or the applicable Warrant Certificate.
3.2
Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate
under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3
Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate,
may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4
Adjustments.
(a)
In case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares, the Warrant
Price in effect immediately prior to such subdivision shall be proportionately reduced and the number of Warrant Securities purchasable
under the Warrants shall be proportionately increased. Conversely, in case the outstanding shares of Common Stock of the Company shall
be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately
increased and the number of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b)
If at any time or from time to time the holders of Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of the Warrants) shall have received or become entitled to receive, without payment therefor,
(i)
Common Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable
for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or
other distribution;
(ii)
any cash paid or payable otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii)
any evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv)
Common Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments in
respect of which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall,
upon the exercise of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without
payment of any additional consideration therefore, the amount of stock and other securities and property (including cash and indebtedness
or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise had such holder been the
holder of record of such Warrant Securities as of the date on which holders of Common Stock received or became entitled to receive such
shares or all other additional stock and other securities and property.
(c)
In case of (i) any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result
of a subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share exchange, merger
or similar transaction of the Company with or into another person or entity (other than a share exchange, merger or similar transaction
in which the Company is the acquiring or surviving corporation and which does not result in any change in the Common Stock other than
the issuance of additional shares of Common Stock) or (iii) the sale, exchange, lease, transfer or other disposition of all or substantially
all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization Event”),
then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of the Warrants shall have the right
at any time prior to the expiration of the Warrants to purchase, at a total price equal to that payable upon the exercise of the Warrants,
the kind and amount of shares of stock and other securities and property receivable in connection with such Reorganization Event by a
holder of the same number of Warrant Securities as were purchasable by the holders of the Warrants immediately prior to such Reorganization
Event. In any such case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants
so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase
price shall remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not
have been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of
such Warrants had been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology
and form (but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive
a written opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this Section
3.4.
(d)
The Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company, but only upon giving the notices required by Section 3.5 at least ten days prior
to taking such action.
(e)
Except as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of shares
of Common Stock, or securities convertible into or exchangeable for shares of Common Stock, or securities carrying the right to purchase
any of the foregoing or for any other reason whatsoever.
(f)
No fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security
which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security, in either
case as reported on the principal registered national securities exchange on which the Warrant Securities are listed or admitted to trading
on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board Service (the “OTC Bulletin Board”) operated by the Financial Industry Regulatory Authority, Inc. (“FINRA”
) or, if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported on any other
U.S. quotation medium or inter-dealer quotation system on such date, or if on any such date the Warrant Securities are not listed or
admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any
other U.S. quotation medium or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid
and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that purpose at the close of business
on the business day that next precedes the day of exercise.
(g)
Whenever the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at
such holder’s address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h)
Notwithstanding anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof,
be less than the par value per share of Common Stock.
3.5
Notice to Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the Common Stock in connection with the dissolution, liquidation
or winding up of the Company, or (d) reduce the then current Warrant Price pursuant to Section 3.4(d), then the Company shall mail to
each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten days prior
to the applicable date hereinafter specified, a notice stating (x) the record date for such dividend or distribution, or, if a record
is not to be taken, the date as of which the holders of record of Common Stock that will be entitled to such dividend or distribution
are to be determined, (y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the first
date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6
[If the Warrants are Subject to Acceleration by the Company, Insert — Acceleration of Warrants by the Company.
(a)
At any time on or after [•], the Company shall have the right to accelerate any or all Warrants at any time by causing them
to expire at the close of business on the day next preceding a specified date (the “Acceleration Date”), if
the Market Price (as hereinafter defined) of the Common Stock equals or exceeds [●] percent ([●]%) of the then effective Warrant
Price on any twenty Trading Days (as hereinafter defined) within a period of thirty consecutive Trading Days ending no more than five
Trading Days prior to the date on which the Company gives notice to the Warrant Agent of its election to accelerate the Warrants.
(b)
“Market Price” for each Trading Day shall be, if the Common Stock is listed or admitted to trading on any
registered national securities exchange, the last reported sale price, regular way (or, if no such price is reported, the average of
the reported closing bid and asked prices, regular way) of Common Stock, in either case as reported on the principal registered national
securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any registered
national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin Board operated
by FINRA, or if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported on
any other U.S. quotation medium or inter-dealer quotation system, or if on any such date the shares of Common Stock are not listed or
admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any
other U.S. quotation medium or inter-dealer quotation system, the average of the closing bid and asked prices as furnished by any FINRA
member firm selected from time to time by the Company for that purpose. “Trading Day” shall be each Monday
through Friday, other than any day on which securities are not traded in the system or on the exchange that is the principal market for
the Common Stock, as determined by the Board of Directors of the Company.
(c)
In the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by
lot, pro rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(d)
Notice of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered
holder of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant
Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall be given
no more than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants pursuant to this
Section 3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(e)
Any Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date.
The Warrant Price shall be payable as provided in Section 2.]
ARTICLE
4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1
Exchange and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number
of Warrant Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books
in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for
exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange
or registration of transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole
number of Warrant Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2
Treatment of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3
Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent
shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE
5
CONCERNING
THE WARRANT AGENT
5.1
Warrant Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [•] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a)
Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising
out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against
any claim of such liability.
(b)
Agent for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders
of Warrant Certificates or beneficial owners of Warrants.
(c)
Counsel. The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written
advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of such counsel.
(d)
Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by
it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e)
Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee under any indenture to which the Company is a party.
(f)
No Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g)
No Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h)
No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the
Company.
(i)
No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3
Resignation, Removal and Appointment of Successors.
(a)
The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b)
The Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after the
date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c)
In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under
any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession
by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally
as they become due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or
order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up
or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d)
Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e)
Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE
6
MISCELLANEOUS
6.1
Amendment. This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any
other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2
Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.
6.3
Addresses. Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [•],
Attention: [•] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to
Genelux Corporation, 2625 Townsgate Road, Suite 230, Westlake Village, California 91361, Attention: [•] (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
6.4
Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with
the laws of the State of New York.
6.5
Delivery of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements
of the Securities Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6
Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United
States Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or
upon the expiration of the period during which the Warrants are exercisable.
6.7
Persons Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8
Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9
Counterparts. This Agreement may be executed in any number of counterparts, each of which as so executed deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10
Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office
of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such
holder’s Warrant Certificate for inspection by it.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| GENELUX
CORPORATION, as Company |
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| ATTEST: |
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| COUNTERSIGNED |
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| [●],
as Warrant Agent |
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| Name: |
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[SIGNATURE
PAGE TO Genelux Corporation COMMON STOCK WARRANT AGREEMENT]
EXHIBIT
A
FORM
OF WARRANT CERTIFICATE
[FACE
OF WARRANT CERTIFICATE]
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| [Form
of Legend if Warrants are not immediately exercisable.] |
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
Genelux
Corporation
WARRANT
CERTIFICATE REPRESENTING
WARRANTS
TO PURCHASE
COMMON
STOCK, PAR VALUE $0.001 PER SHARE
This
certifies that [●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling
such owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on
[●], [●] shares of Common Stock, par value $0.001 per share (the “Warrant Securities”), of Genelux
Corporation (the “Company”) on the following basis: during the period from [●], through and including
[●], the exercise price per Warrant Security will be $[•], subject to adjustment as provided in the Warrant Agreement (as hereinafter
defined) (the “Warrant Price”). The Holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], the Warrant Price
for each Warrant Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering
this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the “Warrant Agent”), which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement
(as hereinafter defined).
The
term “Holder” as used herein shall mean the person in whose name at the time this Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof
a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent.
Transfer
of this Warrant Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent by the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged
at the corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant
Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set
forth in the Warrant Agreement) or to exercise any voting rights.
Reference
is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures of
its duly authorized officers.
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| GENELUX
CORPORATION, as Company |
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| COUNTERSIGNED |
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| [●],
as Warrant Agent |
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[REVERSE
OF WARRANT CERTIFICATE]
(Instructions
for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United
States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete
the information required below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the payment.
(To
be executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise _______ Warrants, evidenced by this Warrant Certificate, to purchase _______ shares
of the Common Stock, par value $0.001 per share (the “Warrant Securities”), of Genelux Corporation and represents
that the undersigned has tendered payment for such Warrant Securities, in lawful money of the United States of America, [in cash or by
certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], to the
order of Genelux Corporation, c/o [insert name and address of Warrant Agent], in the amount of $_______ in accordance with the terms
hereof. The undersigned requests that said Warrant Securities be in fully registered form in the authorized denominations, registered
in such names and delivered all as specified in accordance with the instructions set forth below.
If
the number of Warrants exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
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| Dated:
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Name: |
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Please
Print |
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| Address: |
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| (Insert
Social Security or Other Identifying Number of Holder) |
| Signature
Guaranteed: |
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Signature |
(Signature
must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee
by a FINRA member firm).
This
Warrant may be exercised at the following addresses:
By
hand at:
[●]
By
mail at:
[Instructions
as to form and delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer Warrant]
FOR
VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto:
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| (Please
print name and address including zip code) |
|
Please
print Social Security or other identifying number |
the
right represented by the within Warrant to purchase _______ shares of [Title of Warrant Securities] of Genelux Corporation to which the
within Warrant relates and appoints ______________ attorney to transfer such right on the books of the Warrant Agent with full power
of substitution in the premises.
(Signature
must conform in all respects to name of holder as specified on the face of the Warrant)
Exhibit
4.18
Genelux
Corporation
AND
_____________,
AS WARRANT AGENT
FORM
OF PREFERRED STOCK
WARRANT
AGREEMENT
DATED
AS OF __________
GENELUX
CORPORATION
FORM
OF PREFERRED STOCK WARRANT AGREEMENT
THIS
PREFERRED STOCK WARRANT AGREEMENT (this “Agreement”), dated as of [●], between Genelux
Corporation, a Delaware corporation (the “Company”), and [●], a [corporation] [national banking
association] organized and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent (the
“Warrant Agent”).
WHEREAS,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Preferred Stock purchasable through
exercise of Warrants] (the “Warrant Securities”), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the “Warrant Certificates”; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and replaced.
NOW
THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE
1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY
OF WARRANT CERTIFICATES
1.1
Issuance of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance
of the Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each
Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2
Execution and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice presidents, chief financial officers, chief legal officers, treasurers,
assistant treasurers, controllers, assistant controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon.
Such signatures may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In
case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent,
such Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased
to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The
term “holder” or “holder of a Warrant Certificate” as used herein shall mean any
person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for
that purpose.
1.3
Issuance of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the Company.
ARTICLE
2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1
Warrant Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable
Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant Certificate
at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2
Duration of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant
Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [•] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3
Exercise of Warrants.
(a)
During the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received
by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named
as the holder of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record
of such Warrant Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the
Warrant Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in
respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer
books shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities.
The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with
it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b)
The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information
as the Company shall reasonably require.
(c)
As soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such holder is entitled, in fully registered form, registered in
such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d)
The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other charge is due.
(e)
Prior to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the
Warrants.
ARTICLE
3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1
No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights, except to the
extent expressly set forth in this Agreement or the applicable Warrant Certificate.
3.2
Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate
under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3
Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate,
may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4
Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of [title of Preferred Stock purchasable through exercise of
Warrants] into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Securities purchasable under the Warrants shall be proportionately increased.
Conversely, in case the
outstanding shares of [title of Preferred Stock purchasable through exercise of Warrants] of the Company shall be combined into a smaller
number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased and the number
of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b)
If at any time or from time to time the holders of [title of Preferred Stock purchasable through exercise of Warrants] (or any shares
of stock or other securities at the time receivable upon the exercise of the Warrants) shall have received or become entitled to receive,
without payment therefor,
(i)
[title of Preferred Stock purchasable through exercise of Warrants] or any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for [title of Preferred Stock purchasable through exercise of Warrants], or any
rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii)
any cash paid or payable otherwise than in accordance with the terms of [title of Preferred Stock purchasable through exercise of
Warrants] or otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii)
any evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv)
[title of Preferred Stock purchasable through exercise of Warrants] or additional stock or other securities or property (including
cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of [title
of Preferred Stock purchasable through exercise of Warrants] issued as a stock split or adjustments in respect of which shall be covered
by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall, upon the exercise of the Warrant,
be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without payment of any additional consideration
therefore, the amount of stock and other securities and property (including cash and indebtedness or rights to subscribe for or purchase
indebtedness) which such holder would hold on the date of such exercise had such holder been the holder of record of such Warrant Securities
as of the date on which holders of [title of Preferred Stock purchasable through exercise of Warrants] received or became entitled to
receive such shares or all other additional stock and other securities and property.
(c)
In case of (i) any reclassification, capital reorganization, or change in the [title of Preferred Stock purchasable through the exercise
of the Warrants] of the Company (other than as a result of a subdivision, combination or stock dividend provided for in Section 3.4(a)
or Section 3.4(b) above), (ii) share exchange, merger or similar transaction of the Company with or into another person or entity (other
than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation and which does not
result in any change in the [title of Preferred Stock purchasable through the exercise of the Warrants] other than the issuance of additional
shares of [title of Preferred Stock purchasable through the exercise of the Warrants]) or (iii) the sale, exchange, lease, transfer or
other disposition of all or substantially all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of the Warrants
shall have the right at any time prior to the expiration of the Warrants to purchase, at a total price equal to that payable upon the
exercise of the Warrants, the kind and amount of shares of stock and other securities and property
receivable in connection with such Reorganization Event by a holder of the same number of shares of [title of Preferred Stock purchasable
through the exercise of the Warrants] as were purchasable by the holders of the Warrants immediately prior to such Reorganization Event.
In any such case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants so that
the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase
price shall remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not
have been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of
such Warrants had been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology
and form (but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive
a written opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this Section
3.4.
(d)
The Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company, but only upon giving the notices required by Section 3.5 at least ten days prior
to taking such action.
(e)
Except as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of any
securities of the Company or for any other reason whatsoever.
(f)
No fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security
which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security, in either
case as reported on the principal registered national securities exchange on which the Warrant Securities are listed or admitted to trading
on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board Service (the “OTC Bulletin Board”) operated by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
or, if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported on any other
U.S. quotation medium or inter-dealer quotation system on such date, or if on any such date the Warrant Securities are not listed or
admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any
other U.S. quotation medium or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid
and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that purpose at the close of business
on the business day that next precedes the day of exercise.
(g)
Whenever the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at
such holder’s address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h)
Notwithstanding anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof,
be less than the par value per share of [title of Preferred Stock purchasable through the exercise of the Warrants].
3.5
Notice to Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the [title of Preferred Stock purchasable through the exercise
of the Warrants] in connection with the dissolution, liquidation or winding up of the Company, or (d) reduce the then current Warrant
Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address as it shall appear
on the books of the Warrant Agent, at least ten days prior to the applicable date hereinafter specified, a notice stating (x) the record
date for such dividend or distribution, or, if a record is not to be taken, the date as of which the holders of record of [title of Preferred
Stock purchasable through the exercise of Warrants] that will be entitled to such dividend or distribution are to be determined, (y)
the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become effective, and the date as
of which it is expected that holders of [title of Preferred Stock purchasable through the exercise of the Warrants] of record shall be
entitled to exchange their shares of [title of Preferred Stock purchasable through the exercise of the Warrants] for securities or other
property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the first date on which the then
current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any defect therein or in the mailing
thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6
[If the Warrants are Subject to Acceleration by the Company, Insert—Acceleration of Warrants by the Company.
(a)
At any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them
to expire at the close of business on the day next preceding a specified date (the “Acceleration Date”), if
the Market Price (as hereinafter defined) of the [title of Preferred Stock purchasable through the exercise of the Warrants] equals or
exceeds [●] percent ([●]%) of the then effective Warrant Price on any twenty Trading Days (as hereinafter defined) within a
period of thirty consecutive Trading Days ending no more than five Trading Days prior to the date on which the Company gives notice to
the Warrant Agent of its election to accelerate the Warrants.
(b)
“Market Price” for each Trading Day shall be, if the [title of Preferred Stock purchasable through the
exercise of the Warrants] is listed or admitted to trading on any registered national securities exchange, the last reported sale price,
regular way (or, if no such price is reported, the average of the reported closing bid and asked prices, regular way) of [title of Preferred
Stock purchasable through the exercise of the Warrants], in either case as reported on the principal registered national securities exchange
on which the [title of Preferred Stock purchasable through the exercise of the Warrants] is listed or admitted to trading or, if not
listed or admitted to trading on any registered national securities exchange, the average of the closing high bid and low asked prices
as reported on the OTC Bulletin Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average of the closing
high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system, or if on any such date
the shares of [title of Preferred Stock purchasable through the exercise of the Warrants] are not listed or admitted to trading on a
registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium
or inter-dealer quotation system, the average of the closing bid and asked prices as furnished by any FINRA member firm selected from
time to time by the Company for that purpose. “Trading Day” shall be each Monday through Friday, other than
any day on which securities are not traded in the system or on the exchange that is the principal market for the [title of Preferred
Stock purchasable through the exercise of the Warrants], as determined by the Board of Directors of the Company.
(c)
In the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by
lot, pro rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(d)
Notice of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered
holder of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant
Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall be given
no more than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants pursuant to this
Section 3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(e)
Any Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date.
The Warrant Price shall be payable as provided in Section 2.]
ARTICLE
4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1
Exchange and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number
of Warrant Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books
in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for
exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange
or registration of transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole
number of Warrant Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2
Treatment of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3
Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent
shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE
5
CONCERNING
THE WARRANT AGENT
5.1
Warrant Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a)
Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising
out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against
any claim of such liability.
(b)
Agent for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders
of Warrant Certificates or beneficial owners of Warrants.
(c)
Counsel. The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written
advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of such counsel.
(d)
Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by
it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e)
Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee under any indenture to which the Company is a party.
(f)
No Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g)
No Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h)
No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the
Company.
(i)
No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3
Resignation, Removal and Appointment of Successors.
(a)
The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b)
The Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after the
date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c)
In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under
any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession
by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally
as they become due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or
order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up
or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d)
Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e)
Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE
6
MISCELLANEOUS
6.1
Amendment. This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any
other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2
Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.
6.3
Addresses. Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to
Genelux Corporation, 2625 Townsgate Road, Suite 230, Westlake Village, California 91361, Attention: [●] (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
6.4
Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with
the laws of the State of New York.
6.5
Delivery of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements
of the Securities Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6
Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United
States Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or
upon the expiration of the period during which the Warrants are exercisable.
6.7
Persons Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8
Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9
Counterparts. This Agreement may be executed in any number of counterparts, each of which as so executed deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10
Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office
of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such
holder’s Warrant Certificate for inspection by it.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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| GENELUX
CORPORATION, as Company |
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| By: |
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| Name: |
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| Title: |
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| ATTEST: |
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| COUNTERSIGNED |
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| [●],
as Warrant Agent |
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| Name: |
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[SIGNATURE
PAGE TO GENELUX CORPORATION PREFERRED STOCK WARRANT AGREEMENT]
EXHIBIT
A
FORM
OF WARRANT CERTIFICATE
[FACE
OF WARRANT CERTIFICATE]
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| [Form
of Legend if Warrants are not immediately exercisable.] |
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
GENELUX
CORPORATION
WARRANT
CERTIFICATE REPRESENTING
WARRANTS
TO PURCHASE
[TITLE
OF WARRANT SECURITIES]
This
certifies that [●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling
such owner to purchase, at any time [after [●] p.m., [City] time, on [●] and] on or before [●] p.m., [City] time, on [●],
[●] shares of [Title of Warrant Securities] (the “Warrant Securities”), of Genelux Corporation (the “Company”)
on the following basis: during the period from [●], through and including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the “Warrant Price”).
The Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in
full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House
funds] [by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Security with respect to which this
Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form
on the back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The
term “Holder” as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof
a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent.
Transfer
of this Warrant Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent by the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged
at the corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant
Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set
forth in the Warrant Agreement) or to exercise any voting rights.
Reference
is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures of
its duly authorized officers.
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| GENELUX
CORPORATION, as Company |
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| ATTEST: |
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| COUNTERSIGNED |
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| [●],
as Warrant Agent |
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[REVERSE
OF WARRANT CERTIFICATE]
(Instructions
for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United
States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete
the information required below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the payment.
(To
be executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise _______ Warrants, evidenced by this Warrant Certificate, to purchase _______ shares
of [Title of Warrant Securities], par value $0.001 per share (the “Warrant Securities”), of Genelux Corporation
and represents that the undersigned has tendered payment for such Warrant Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], to the order of Genelux Corporation, c/o [insert name and address of Warrant Agent], in the amount of $_______ in accordance
with the terms hereof. The undersigned requests that said Warrant Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the instructions set forth below.
If
the number of Warrants exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
| Dated:
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Name:
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Please
Print |
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| Address: |
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| (Insert
Social Security or Other Identifying Number of Holder) |
| Signature
Guaranteed: |
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Signature |
(Signature
must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee
by a FINRA member firm).
This
Warrant may be exercised at the following addresses:
By
hand at:
[●]
By
mail at:
[Instructions
as to form and delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer Warrant]
FOR
VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto:
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| (Please
print name and address including zip code) |
|
Please
print Social Security or other identifying number |
the
right represented by the within Warrant to purchase _______ shares of [Title of Warrant Securities] of Genelux Corporation to which the
within Warrant relates and appoints ______________ attorney to transfer such right on the books of the Warrant Agent with full power
of substitution in the premises.
(Signature
must conform in all respects to name of holder as specified on the face of the Warrant)
Exhibit
4.19
GENELUX
CORPORATION
AND
_____________,
AS WARRANT AGENT
FORM
OF DEBT SECURITIES
WARRANT
AGREEMENT
DATED
AS OF __________
GENELUX
CORPORATION
FORM
OF DEBT SECURITIES WARRANT AGREEMENT
THIS
DEBT SECURITIES WARRANT AGREEMENT (this “Agreement”), dated as of [●], between GENELUX CORPORATION,
a Delaware corporation (the “Company”), and [●], a [corporation] [national banking association] organized
and existing under the laws of [●] and having a corporate trust office in [●], as warrant agent (the “Warrant Agent”).
WHEREAS,
the Company has entered into an indenture dated as of [●] (the “Indenture”), with [●], as trustee
(such trustee, and any successors to such trustee, herein called the “Trustee”), providing for the issuance
from time to time of its debt securities, to be issued in one or more series as provided in the Indenture (the “Debt Securities”);
WHEREAS,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the “Warrant Debt Securities”), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the “Warrant Certificates”; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and replaced.
NOW
THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE
1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY
OF WARRANT CERTIFICATES
1.1
Issuance of Warrants. [If Warrants alone — Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other Securities and Warrants — Warrant Certificates will be issued in connection with the issuance
of the Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant
Debt Security. [If Other Securities and Warrants — Warrant Certificates will be issued with the Other Securities
and each Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities
issued.]
1.2
Execution and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent
and may have such letters, numbers, or other marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which
the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its
present or future chief executive officers, presidents, senior vice presidents, vice presidents, chief financial officers, chief
legal officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In
case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent,
such Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased
to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The
term “holder” or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the
time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3
Issuance of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Debt Securities may be executed by
the Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the Company.
ARTICLE
2
WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
2.1
Warrant Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable
Warrant Certificate, entitle the holder thereof, to purchase the principal amount of Warrant Debt Securities specified in the applicable
Warrant Certificate at an exercise price of [●]% of the principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have
been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from the date of their
initial issuance.] [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities) will be amortized
at a [●]% annual rate, computed on a[n] [semi-] annual basis [using a 360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this Agreement as the “Warrant Price.”
2.2
Duration of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant
Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3
Exercise of Warrants.
(a)
During the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Debt Securities in
registered form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in
lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Debt Security with respect to which a Warrant
is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five
business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Debt Securities
set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in
full of the Warrant Price, the transfer books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be
closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person
so designated to be named as the holder of record of such Warrant Debt Securities on such date, but shall be effective to constitute
such person as the holder of record of such Warrant Debt Securities for all purposes at the opening of business on the next succeeding
day on which the transfer books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be opened, and the
certificates for the Warrant Debt Securities in respect of which such Warrants are then exercised shall be issuable as of the date on
such next succeeding day on which the transfer books shall next be opened, and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Debt Securities. The Warrant Agent shall deposit all funds received by it in payment of the
Warrant Price in an account of the Company maintained with it and shall advise the Company by telephone at the end of each day on which
a payment for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b)
The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise, and (iv)
such other information as the Company or the Trustee shall reasonably require.
(c)
As soon as practicable after the exercise of any Warrant, the Company shall issue, pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate evidencing such Warrant, the Warrant Debt Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Debt Securities remaining unexercised.
(d)
The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other charge is due.
(e)
Prior to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Debt Securities, a number of shares sufficient to provide for the exercise
of the Warrants.
ARTICLE
3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1
No Rights as Holder of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities, including, without limitation,
the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce
any of the covenants in the Indenture.
3.2
Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities. Upon the issuance of any
new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3
Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt Securities or the holder of any other
Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise
the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificates
and in this Agreement.
3.4
Merger, Sale, Conveyance or Lease. In case of (a) any share exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation)
or (b) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and assets of the Company
as an entirety (in any such case, a “Reorganization Event”), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the same from the Company’s successor shall be delivered
to the holders of the Warrants, so that such successor shall succeed to and be substituted for the Company, and assume all the Company’s
obligations under, this Agreement and the Warrants. The Company shall thereupon be relieved of any further obligation hereunder or under
the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company,
any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the Company, and may execute and deliver
securities in its own name, in fulfillment of its obligations to deliver Warrant Debt Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof.
In any case of any such Reorganization Event, such changes in phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence
that any such Reorganization Event complies with the provisions of this Section 3.4.
3.5
Notice to Warrantholders. In case the Company shall (a) effect any Reorganization Event or (b) make any distribution on or in respect
of the [title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of the Company, then the Company
shall mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten
days prior to the applicable date hereinafter specified, a notice stating the date on which such Reorganization Event, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is expected that holders of [title of Warrant Debt Securities]
of record shall be entitled to exchange their shares of [title of Warrant Debt Securities] for securities or other property deliverable
upon such Reorganization Event, dissolution, liquidation or winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction.
ARTICLE
4
EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
4.1
Exchange and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same
aggregate principal amount of Warrant Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at
its corporate trust office, books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the
Warrant Agent at its corporate trust office for exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance of a
Warrant Certificate evidencing a Warrant for a fraction of a Warrant Debt Security or a number of Warrants for a whole number of
Warrant Debt Securities and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to
the same benefits under this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2
Treatment of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3
Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent
shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE
5
CONCERNING
THE WARRANT AGENT
5.1
Warrant Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a)
Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with
the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending
against any claim of such liability.
(b)
Agent for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders
of Warrant Certificates or beneficial owners of Warrants.
(c)
Counsel. The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the
written advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d)
Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted
by it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e)
Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act
on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from
acting as trustee under any indenture to which the Company is a party, including, without limitation, as Trustee under the Indenture.
(f)
No Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest
on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g)
No Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or
any of the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h)
No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely
by the Company.
(i)
No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates
against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve
it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant
Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated
by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3
Resignation, Removal and Appointment of Successors.
(a)
The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b)
The Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after the
date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c)
In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under
any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession
by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally
as they become due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or
order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up
or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d)
Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e)
Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE
6
MISCELLANEOUS
6.1
Amendment. This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any
other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2
Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.
6.3
Addresses. Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to
Genelux Corporation, 2625 Townsgate Road, Suite 230, Westlake Village, California 91361, Attention: [●] (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
6.4
Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with
the laws of the State of New York.
6.5
Delivery of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements
of the Securities Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Debt Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6
Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United
States Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Debt Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants
or upon the expiration of the period during which the Warrants are exercisable.
6.7
Persons Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8
Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9
Counterparts. This Agreement may be executed in any number of counterparts, each of which as so executed deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10
Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office
of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such
holder’s Warrant Certificate for inspection by it.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| GENELUX
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COUNTERSIGNED
[●],
as Warrant Agent |
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[SIGNATURE
PAGE TO GENELUX CORPORATION DEBT SECURITIES WARRANT AGREEMENT]
EXHIBIT
A
FORM
OF WARRANT CERTIFICATE
[FACE
OF WARRANT CERTIFICATE]
| [Form
of Legend if Warrants are not immediately exercisable.] |
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
GENELUX
CORPORATION
WARRANT
CERTIFICATE REPRESENTING
WARRANTS
TO PURCHASE
[TITLE
OF WARRANT DEBT SECURITIES]
This
certifies that [●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling
such owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on
[●], $[●] principal amount of [Title of Warrant Debt Securities] (the “Warrant Debt Securities”)
of Genelux Corporation (the “Company”) issued or to be issued under the Indenture (as hereinafter defined),
on the following basis: during the period from [●], through and including [●], each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase the principal amount of Warrant Debt Securities stated in the Warrant Certificate
at the warrant price (the “Warrant Price”) of [●]% of the principal amount thereof [plus accrued amortization,
if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities,
from the date of their original issuance]. [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a [●]% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day
months]. The Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying
in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing
House funds] [by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Debt Security with respect to
which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the “Warrant Agent”), which is, on the date hereof, at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The
term “Holder” as used herein shall mean the person in whose name at the time this Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Debt Securities in the principal amount of $1,000
or any integral multiple thereof in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate,
there shall be issued to the Holder hereof a new Warrant Certificate evidencing Warrants for the aggregate principal amount of Warrant
Debt Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent.
The
Warrant Debt Securities to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture, dated as of [●] (the “Indenture”), between the Company and
[●], as trustee (such trustee, and any successors to such trustee, the “Trustee”) and will be subject
to the terms and provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form
of the Warrant Debt Securities, are on file at the corporate trust office of the Trustee.
Transfer
of this Warrant Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent by the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged
at the corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate principal amount
of Warrant Debt Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or
to enforce any of the covenants of the Indenture.
Reference
is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures of
its duly authorized officers.
Dated: _______________________________
| GENELUX
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COUNTERSIGNED
[●],
as Warrant Agent |
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[REVERSE
OF WARRANT CERTIFICATE]
(Instructions
for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Debt Securities (as hereinafter defined), the Holder must pay, in lawful money of
the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer
in immediately available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention:
[●], which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered mail
is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly executed,
must be received by the Warrant Agent within five business days of the payment.
(To
be executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise _______ Warrants, evidenced by this Warrant Certificate, to purchase $_______ principal
amount of the [Title of Warrant Debt Securities] (the “Warrant Debt Securities”) of Genelux Corporation and
represents that the undersigned has tendered payment for such Warrant Debt Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], to the order of Genelux Corporation, c/o [insert name and address of Warrant Agent], in the amount of $_______ in accordance
with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in fully registered form in
the authorized denominations, registered in such names and delivered all as specified in accordance with the instructions set forth below.
If
the number of Warrants exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate
evidencing the Warrants for the aggregate principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
| Dated: |
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Please
Print |
Address:
(Insert Social Security or Other Identifying Number of Holder)
| Signature
Guaranteed: |
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Signature |
(Signature
must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee
by a FINRA member firm).
This
Warrant may be exercised at the following addresses:
By
hand at:
[●]
By
mail at:
[Instructions
as to form and delivery of Warrant Debt Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer Warrant]
FOR
VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto:
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| (Please
print name and address including zip code) |
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Please
print Social Security or other identifying number |
the
right represented by the within Warrant to purchase $_______ aggregate principal amount of [Title of Warrant Debt Securities] of Genelux
Corporation to which the within Warrant relates and appoints attorney to transfer such right on the books of the Warrant Agent with full
power of substitution in the premises.
(Signature
must conform in all respects to name of holder as specified on the face of the Warrant)
Exhibit
5.1
Jason
L. Kent
+1
212 479 6044
jkent@cooley.com
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February
2, 2024
Genelux
Corporation
2625
Townsgate Road, Suite 230
Westlake
Village, CA 91361
Ladies
and Gentlemen:
We
have acted as counsel to Genelux Corporation, a Delaware corporation (the “Company”), in connection with the
filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3
(the “Registration Statement”) by the Company under the Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement includes two prospectuses: (i) a base prospectus (the “Base Prospectus”)
and (ii) a prospectus (the “ATM Prospectus”) covering up to $100,000,000 of shares
of the Company’s common stock, par value $0.001 per share (“Common Stock”) that may be sold under the
Sales Agreement, dated February 2, 2024, between the Company and Guggenheim Securities, LLC (such agreement, the “Sales Agreement”,
and such shares, the “ATM Shares”). The Base Prospectus provides it will be supplemented in the future by one
or more prospectus supplements (each, a “Prospectus Supplement”). The Registration Statement, including the
Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements) and the ATM Prospectus will provide for the
registration by the Company of the sale of
| ● |
shares
of Common Stock (the “Base Prospectus Shares”); |
| |
|
| ● |
shares
of preferred stock, par value $0.001 per share, of the Company (the “Preferred Stock”); |
| |
|
| ● |
debt
securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an indenture
to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a trustee to be selected by
the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.14 to the Registration Statement
and one or more indentures supplemental thereto with respect to any particular series of Debt Securities (the “Indenture”);
|
| |
|
| ● |
warrants
to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), which may be issued under
one or more warrant agreements, to be dated on or about the date of the first issuance of the Warrants thereunder, by and between
a warrant agent to be selected by the Company (the “Warrant Agent”) and the Company, in the forms filed
as Exhibits 4.17, 4.18 and 4.19, respectively, to the Registration Statement (each, a “Warrant Agreement”); and |
| |
|
| ● |
the
ATM Shares. |
The
Base Prospectus Shares, the Preferred Stock, the Debt Securities, the Warrants, the ATM Shares, plus any additional Common Stock, Preferred
Stock, Debt Securities and Warrants that may be registered pursuant to any registration statement that the Company may hereafter file
with the Commission pursuant to Rule 462(b) under the Securities Act in connection with an offering by the Company pursuant to the Registration
Statement, are collectively referred to herein as the “Securities.” The Securities are being registered for
offer and sale from time to time pursuant to Rule 415 under the Securities Act.
Cooley LLP 55 Hudson Yards New York, NY 10001-2157
t: (212) 479 6000 f: (212) 479 6275 cooley.com
February
2, 2024
Page
Two
In
connection with this opinion, we have examined and relied upon the Company’s certificate of incorporation and bylaws, each as currently
in effect, and such other records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon a certificate of
an officer of the Company and have not independently verified such matters.
In
rendering this opinion, we have assumed the genuineness of all signatures; the authenticity of all documents submitted to us as originals;
the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of
public officials; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness thereof.
With
respect to our opinion as to the Base Prospectus Shares, we have assumed that, at the time of issuance and sale, a sufficient number
of shares of Common Stock will be authorized and available for issuance and that the consideration for the issuance and sale of the Base
Prospectus Shares (or Preferred Stock or Debt Securities convertible into, or Warrants exercisable for, Common Stock) will be in an amount
that is not less than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock, we have assumed that,
at the time of issuance and sale, a sufficient number of shares of Preferred Stock will be authorized, designated and available for issuance
and that the consideration for the issuance and sale of the Preferred Stock (or Debt Securities convertible into, or Warrants exercisable
for, Preferred Stock) will be in an amount that is not less than the par value of the Preferred Stock. We have also assumed that any
Debt Securities or Warrants offered under the Registration Statement, and the related Indenture and Warrant Agreement will be executed
in the forms filed as exhibits to the Registration Statement or incorporated by reference therein. We have also assumed that (i) with
respect to Securities issuable upon conversion of any convertible Preferred Stock, such convertible Preferred Stock will be duly authorized,
validly issued, fully paid and nonassessable; and (ii) with respect to any Securities issuable upon conversion of any convertible Debt
Securities or upon exercise of any Warrants, such convertible Debt Securities or Warrants will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity
principles and to limitations on availability of equitable relief, including specific performance.
With
respect to the ATM Shares, we have assumed (i) that each sale of the ATM Shares will be duly authorized by the Board of Directors of
the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section
152 of the General Corporation Law of the State of Delaware (the “DGCL”), and (ii) that no more than 50,000,000
ATM Shares will be sold for a consideration not less than the par value of the Common Stock. With respect to the ATM Shares, we express
no opinion to the extent that future issuances of securities of the Company, anti-dilution adjustments to outstanding securities of the
Company or other matters cause the number of shares of Common Stock issuable under the Sales Agreement to exceed the number of shares
available for issuance by the Company.
Our
opinion herein is expressed solely with respect to the DGCL and, as to the Debt Securities and the Warrants constituting binding obligations
of the Company, the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no
opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance
as to compliance with any federal or state securities law, rule or regulation.
Cooley LLP 55 Hudson Yards New
York, NY 10001-2157
t: (212) 479 6000 f: (212) 479
6275 cooley.com
February
2, 2024
Page
Three
On
the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that:
1.
With respect to the Base Prospectus Shares offered under the Registration Statement, provided that (i) the Registration Statement
and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and
all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the issuance of
the Base Prospectus Shares has been duly authorized by all necessary corporate action on the part of the Company; (iii) the issuance
and sale of the Base Prospectus Shares do not violate any applicable law, are in conformity with the Company’s then operative certificate
of incorporation (the “Certificate of Incorporation”) and bylaws (the “Bylaws”),
do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates, if any, for
the Base Prospectus Shares have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to
the purchasers thereof against payment therefor, then the Base Prospectus Shares, when issued and sold in accordance with a duly authorized,
executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock or convertible
Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued,
fully paid and nonassessable.
2.
With respect to the Preferred Stock offered under the Registration Statement, provided that (i) the Registration Statement and any
required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the terms and issuance of the
Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company; (iii) the terms of the shares
of Preferred Stock and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation
and the Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any
applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates,
if any, for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered
to the purchasers thereof against payment therefor, then the Preferred Stock, when issued and sold in accordance with a duly authorized,
executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Debt Securities in accordance
with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and nonassessable.
3.
With respect to any series of the Debt Securities issued under the Indenture and offered under the Registration Statement, provided
that (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act
and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required
by such laws; (ii) the Indenture has been duly authorized by the Company and the Trustee by all necessary corporate action; (iii) the
Indenture has been duly executed and delivered by the Company and the Trustee, and has been qualified under the Trust Indenture Act of
1939, as amended; (iv) the issuance and terms of the Debt Securities have been duly authorized by the Company by all necessary corporate
action; (v) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture
so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company,
so as to be in conformity with the Certificate of Incorporation and the Bylaws, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company; and (vi) the notes representing the Debt Securities have
been duly executed and delivered by the Company and authenticated by the Trustee pursuant to the Indenture and delivered against payment
therefor, then the Debt Securities, when issued and sold in accordance with the Indenture and a duly authorized, executed and delivered
purchase, underwriting or similar agreement, or upon exercise of any Warrants in accordance with their terms, will be binding obligations
of the Company, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally, and by general equitable principles (regardless of whether considered in a proceeding at law or in
equity).
Cooley LLP 55 Hudson Yards New
York, NY 10001-2157
t: (212) 479 6000 f: (212) 479
6275 cooley.com
February
2, 2024
Page
Four
4.
With respect to the Warrants issued under the Warrant Agreements and offered under the Registration Statement, provided that (i)
the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base
Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws;
(ii) the applicable Warrant Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action;
(iii) the applicable Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent; (iv) the issuance and
terms of the Warrants have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Warrants and of
their issuance and sale have been duly established in conformity with the applicable Warrant Agreement and as described in the Registration
Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation
and the Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vi) the Warrants have been duly executed and delivered by the Company and authenticated by the Warrant Agent pursuant
to the applicable Warrant Agreement and delivered against payment therefor, then the Warrants, when issued and sold in accordance with
the applicable Warrant Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be binding
obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors’ rights, generally, and by general equitable principles (regardless of whether considered in a proceeding
at law or in equity).
5.
The ATM Shares, when sold and issued against payment therefor in accordance with the Sales Agreement, the Registration Statement
and the ATM Prospectus, will be validly issued, fully paid and nonassessable.
*
* * * *
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption
“Legal Matters” in the Base Prospectus and the ATM Prospectus. We further consent to the incorporation by reference of this
opinion into any registration statement filed pursuant to Rule 462(b) under the Securities Act with respect to additional Securities.
In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
Our
opinion set forth above is limited to the matters expressly set forth in this letter, and no opinion should be implied or may be inferred
beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof, and we
undertake no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter
come to our attention or any changes in law that may hereafter occur.
Sincerely,
Cooley
LLP
| By: |
/s/
Jason L. Kent |
|
| |
Jason
L. Kent |
|
Cooley LLP 55 Hudson Yards New
York, NY 10001-2157
t: (212) 479 6000 f: (212) 479
6275 cooley.com
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of Genelux Corporation of our report dated March
29, 2023, (which report contains an explanatory paragraph describing conditions that raise substantial doubt about Genelux Corporation’s
ability to continue as a going concern), relating to the financial statements of Genelux Corporation as of December 31, 2022 and 2021
which appear in Genelux Corporation’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed with the Securities
and Exchange Commission. We also consent to the reference to our firm under the caption “Experts” in such Registration Statement.
/s/
Weinberg & Company, P.A.
Los
Angeles, California
February
2, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Genelux Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| | |
Security Type | |
Security
Class Title | |
Fee
Calculation
or Carry
Forward
Rule | | |
Amount
Registered | | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum Aggregate
Offering Price | | |
Fee Rate | | |
Amount of
Registration
Fee | |
| |
| Newly Registered Securities | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be
Paid | |
Equity | |
Common Stock, par value $0.001 per share | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Equity | |
Preferred Stock, par value $0.001 per share | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Debt | |
Debt Securities | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Warrants | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Unallocated (Universal) Shelf | |
— | |
| 457 | (o) | |
| | (1) | |
| | (2) | |
$ | 300,000,000 | (2) | |
$ | 0.00014760 | | |
$ | 44,280 | (3) |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees
Previously
Paid | |
— | |
— | |
| — | | |
| — | | |
| | | |
| — | | |
| | | |
| — | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | | |
| | | |
$ | 300,000,000 | | |
| | | |
$ | 44,280 | |
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | |
| | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| | |
Net Fees Due | | |
| | | |
| | | |
| | | |
$ | 44,280 | |
| (1) |
There are being registered hereunder such indeterminate
number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate principal amount of debt
securities and such indeterminate number of warrants to purchase common stock, preferred stock or debt securities as shall have an aggregate
initial offering price not to exceed $300,000,000. If any debt securities are issued at an original issue discount, then the principal
amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $300,000,000,
less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately
or in combination with other securities registered hereunder. The securities registered also include such indeterminate number of shares
of common stock and preferred stock and principal amount of debt securities as may be issued upon conversion of or exchange for preferred
stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions
of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or Securities Act, the shares
being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect
to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
| |
|
| (2) |
The proposed maximum aggregate offering price per
class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of security pursuant to General Instruction II.F. of Form S-3 under the Securities
Act.
|
| |
|
| (3) |
Calculated pursuant to Rule 457(o) under the Securities Act. |
Grafico Azioni Genelux (NASDAQ:GNLX)
Storico
Da Dic 2024 a Gen 2025
Grafico Azioni Genelux (NASDAQ:GNLX)
Storico
Da Gen 2024 a Gen 2025
