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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event
reported): August 29, 2024 (August 27,
2024)
Aclarion,
Inc.
(Exact name of registrant as specified in its charter)
Delaware |
001-41358 |
47-3324725 |
(State or other jurisdiction |
(Commission |
(IRS Employer |
of incorporation) |
File Number) |
Identification No.) |
8181 Arista Place, Suite 100 |
|
Broomfield, Colorado |
80021 |
(Address of Principal Executive Offices) |
(Zip Code) |
Registrant’s telephone number, including area code: (833) 275-2266
Not
Applicable
(Former name or former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
|
Trading |
|
Title of each class |
Symbol(s) |
Name of each exchange on which registered |
|
ACON |
Nasdaq Stock Market |
Common
Stock Warrants |
ACONW |
Nasdaq Stock Market |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive
Agreement.
Issuance of Common Stock Pursuant to Offering
Statement
On August 27, 2024, Aclarion, Inc. (the “Company”),
entered into a subscription agreement (the “Subscription Agreement”) with certain accredited investors, pursuant to which
the Company agreed to issue and sell to the investors 1,000,000 shares (the “Shares”) of common stock of the Company, par
value $0.00001 per share (the “Common Stock”), at a price of $0.29 per share for gross proceeds to the Company of $290,000.
The Shares to be issued in the offering were offered
at-the-market under Nasdaq rules and pursuant to the Company’s Form 1-A (the “Offering Statement”), initially filed
by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities
Act”), on June 11, 2024 and qualified on June 24, 2024.
The Shares were not placed through the efforts
of a placement agent and no fees or commissions are to be paid on the transaction to anyone.
The Company has the ability, at its election,
to raise additional proceeds of up to approximately $29.39 million on the same terms and conditions pursuant to the Offering Statement
from time to time.
Notwithstanding that the Company desires to consummate
one or more additional sales in the future, at this time the Company has no such additional oral or written agreements to consummate any
such sales, and, as such, we cannot guarantee that any such sales will occur in the future.
Issuance of Warrants
On August 27, 2024, the Company also entered into
a warrant purchase agreement (the “Warrant Purchase Agreement”) with the accredited investors pursuant to with the Company
issued warrants (the “Warrants”) to purchase up to 400,000 Common Stock exercisable on or after February 27, 2025 with a five-year
term and an initial exercise price of $0.29 per share, subject to customary adjustments as described in the Warrant. The Warrants may
be exercised by cashless exercise in accordance with a formula described in the Warrant.
The foregoing description of the Subscription Agreement, the Warrant
Purchase Agreement and the Warrants is qualified in its entirety by reference to the full text of those agreements, copies of which are
filed as Exhibits 10.1, 10.2 and 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form
8-K is incorporated herein by reference.
The securities described above have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”), or the securities laws of any state, and were offered and sold in reliance
on the exemption from registration under the Securities Act afforded by (i) Section 4(a)(2) thereof in the case of the Warrants
and (ii) Regulation A thereof in the case of the Shares.
Item 9.01 Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
ACLARION, INC. |
|
|
|
August 29, 2024 |
By: | /s/ John Lorbiecki |
|
Name: |
John Lorbiecki |
|
Title: |
Chief Financial Officer |
Exhibit 4.1
[FORM OF WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B)
AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES. THE NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY BE LESS THAN THE AMOUNTS SET FORTH
ON THE FACE HEREOF PURSUANT TO SECTION 1(a) OF THIS WARRANT.
Aclarion, Inc.
Warrant To Purchase Common Stock
Warrant No.:
Date of Issuance: August 27, 2024 (“Issuance Date”)
Aclarion,
Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, [BUYER], the registered holder hereof or its permitted assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect,
upon exercise of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer
or replacement hereof, the “Warrant”), at any time or times on or after February 27, 2025, but not after 11:59 p.m.,
New York time, on the Expiration Date (as defined below), [ ] (subject to adjustment as provided herein) fully paid and non-assessable
shares of Common Stock (as defined below) (the “Warrant Shares”, and such number of Warrant Shares, the “Warrant
Number”). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section
19. This Warrant is one of the Warrants to Purchase Common Stock (the “SPA Warrants”) issued pursuant to Section 1.1
of that certain Warrant Purchase Agreement , dated as of August 27, 2024 (the “Subscription Date”), by and among the
Company and the investors (the “Buyers”) referred to therein, as amended from time to time (the “Warrant
Purchase Agreement”).
1. EXERCISE
OF WARRANT.
(a)
Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in
Section 1(f)), this Warrant may be exercised by the Holder on any day on or after February 27, 2025 (an “Exercise Date”),
in whole or in part, by delivery (whether via facsimile or otherwise) of a written notice, in the form attached hereto as Exhibit
A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant. Within one (1) Trading
Day following an exercise of this Warrant as aforesaid, the Holder shall deliver payment to the Company of an amount equal to the Exercise
Price in effect on the date of such exercise multiplied by the number of Warrant Shares as to which this Warrant was so exercised (the
“Aggregate Exercise Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify
the Company in such Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder
shall not be required to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an
Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original of this
Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. Execution and delivery
of an Exercise Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original of this
Warrant after delivery of the Warrant Shares in accordance with the terms hereof. On or before the first (1st)
Trading Day following the date on which the Company has received an Exercise Notice, the Company shall transmit by facsimile or electronic
mail an acknowledgment of confirmation of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to
the Holder and the Company’s transfer agent (the “Transfer Agent”), which confirmation shall constitute an instruction
to the Transfer Agent to process such Exercise Notice in accordance with the terms herein. On or before the second (2nd) Trading Day
following the date on which the Company has received such Exercise Notice (or such earlier date as required pursuant to the 1934 Act
or other applicable law, rule or regulation for the settlement of a trade of such Warrant Shares initiated on the applicable Exercise
Date), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to
which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through
its Deposit/Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer
Program (“FAST”), upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address
as specified in the Exercise Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of
Common Stock to which the Holder shall be entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be
deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the
certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant
to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of
Warrant Shares being acquired upon an exercise and upon surrender of this Warrant to the Company by the Holder, then, at the request
of the Holder, the Company shall as soon as practicable and in no event later than two (2) Business Days after any exercise and at its
own expense, issue and deliver to the Holder (or its designee) a new Warrant (in accordance with Section 7(d)) representing the right
to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant
Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this
Warrant, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall
pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of
the Transfer Agent) that may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. Notwithstanding
the foregoing, except in the case where an exercise of this Warrant is validly made pursuant to a Cashless Exercise, the Company’s
failure to deliver Warrant Shares to the Holder on or prior to the later of (i) two (2) Trading Days after receipt of the applicable
Exercise Notice (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement
of a trade of such Warrant Shares initiated on the applicable Exercise Date) and (ii) one (1) Trading Day after the Company’s receipt
of the Aggregate Exercise Price (or valid notice of a Cashless Exercise) (such later date, the “Share Delivery Date”)
shall not be deemed to be a breach of this Warrant. Notwithstanding anything to the contrary contained in this Warrant or the Registration
Rights Agreement, after the effective date of the Registration Statement (as defined in the Registration Rights Agreement) and prior
to the Holder’s receipt of the notice of a Grace Period (as defined in the Registration Rights Agreement), the Company shall cause
the Transfer Agent to deliver unlegended shares of Common Stock to the Holder (or its designee) in connection with any sale of Registrable
Securities (as defined in the Registration Rights Agreement) with respect to which the Holder has entered into a contract for sale, and
delivered a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, and for which
the Holder has not yet settled. From the Issuance Date through and including the Expiration Date, the Company shall maintain a transfer
agent that participates in FAST.
(b) Exercise
Price. For purposes of this Warrant, “Exercise Price” means $0.29, subject to adjustment as provided herein.
(c)
Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior
to the Share Delivery Date, either (I) if the Transfer Agent is not participating in FAST, to issue and deliver to the Holder (or its
designee) a certificate for the number of Warrant Shares to which the Holder is entitled and register such Warrant Shares on the Company’s
share register or, if the Transfer Agent is participating in FAST, to credit the balance account of the Holder or the Holder’s
designee with DTC for such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise of this Warrant
(as the case may be) or (II) if a Registration Statement covering the resale of the Warrant Shares that are the subject of the Exercise
Notice (the “Unavailable Warrant Shares”) is not available for the resale of such Unavailable Warrant Shares and the
Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify the Holder
and (y) deliver the Warrant Shares electronically without any restrictive legend by crediting such aggregate number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through
its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a
“Notice Failure” and together with the event described in clause (I) above, a “Delivery Failure”),
then, in addition to all other remedies available to the Holder, (X) the Company shall pay in cash to the Holder on each day after the
Share Delivery Date and during such Delivery Failure an amount equal to 1% of the product of (A) the sum of the number of shares of Common
Stock not issued to the Holder on or prior to the Share Delivery Date and to which the Holder is entitled, multiplied by (B) any trading
price of the Common Stock selected by the Holder in writing as in effect at any time during the period beginning on the applicable Exercise
Date and ending on the applicable Share Delivery Date, and (Y) the Holder, upon written notice to the Company, may void its Exercise
Notice with respect to, and retain or have returned, as the case may be, any portion of this Warrant that has not been exercised pursuant
to such Exercise Notice; provided that the voiding of an Exercise Notice shall not affect the Company’s obligations to make any
payments which have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise. In addition to the foregoing,
if on or prior to the Share Delivery Date either (I) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer
Program, the Company shall fail to issue and deliver to the Holder (or its designee) a certificate and register such shares of Common
Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer
Program, the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for the number
of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise hereunder or pursuant to the Company’s
obligation pursuant to clause (ii) below or (II) a Notice Failure occurs, and if on or after such Share Delivery Date the Holder acquires
(in an open market transaction, stock loan or otherwise) shares of Common Stock corresponding to all or any portion of the number of
shares of Common Stock issuable upon such exercise that the Holder is entitled to receive from the Company and has not received from
the Company in connection with such Delivery Failure or Notice Failure, as applicable (a “Buy-In”), then, in addition
to all other remedies available to the Holder, the Company shall, within two (2) Business Days after the Holder’s request and in
the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including
brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so acquired (including,
without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point
the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance
account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Warrant Shares to which the Holder
is entitled upon the Holder’s exercise hereunder (as the case may be) (and to issue such Warrant Shares) shall terminate, or (ii)
promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Warrant Shares or
credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Warrant Shares to
which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Warrant Shares multiplied by (B) the lowest Closing
Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable Exercise Notice and ending
on the date of such issuance and payment under this clause (ii) (the “Buy-In Payment Amount”). Nothing shall limit
the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates
representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the exercise of this Warrant as required
pursuant to the terms hereof. While this Warrant is outstanding, the Company shall cause its transfer agent to participate in FAST. In
addition to the foregoing rights, (i) if the Company fails to deliver the applicable number of Warrant Shares upon an exercise pursuant
to Section 1 by the applicable Share Delivery Date, then the Holder shall have the right to rescind such exercise in whole or in part
and retain and/or have the Company return, as the case may be, any portion of this Warrant that has not been exercised pursuant to such
Exercise Notice; provided that the rescission of an exercise shall not affect the Company’s obligation to make any payments that
have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise, and (ii) if a registration statement covering
the issuance or resale of the Warrant Shares that are subject to an Exercise Notice is not available for the issuance or resale, as applicable,
of such Warrant Shares and the Holder has submitted an Exercise Notice prior to receiving notice of the non-availability of such registration
statement and the Company has not already delivered the Warrant Shares underlying such Exercise Notice electronically without any restrictive
legend by crediting such aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holder’s
or its designee’s balance account with DTC through its Deposit / Withdrawal At Custodian system, the Holder shall have the option,
by delivery of notice to the Company, to (x) rescind such Exercise Notice in whole or in part and retain or have returned, as the case
may be, any portion of this Warrant that has not been exercised pursuant to such Exercise Notice; provided that the rescission of an
Exercise Notice shall not affect the Company’s obligation to make any payments that have accrued prior to the date of such notice
pursuant to this Section 1(c) or otherwise, and/or (y) switch some or all of such Exercise Notice from a cash exercise to a Cashless
Exercise.
(d) Cashless
Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below), if at the time of exercise hereof,
and following at least 30 days after the delivery by the holder hereof of a demand for registration of its Warrant Shares pursuant to
the Warrant Purchase Agreement, a Registration Statement (as defined in the Registration Rights Agreement) is not effective (or the prospectus
contained therein is not available for use) for the resale by the Holder of all of the Warrant Shares, then the Holder may, in its sole
discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the
Company upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number”
of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x C)
B
For purposes of the foregoing formula:
A= the total number of shares with respect to which this Warrant
is then being exercised.
B = as elected by the Holder: (i)
the VWAP of the shares of Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such
Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both
executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours”
(as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the
option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Exercise Notice or (z)
the Bid Price of the shares of Common Stock as of the time of the Holder’s execution of the applicable Exercise Notice if such
Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable
Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered
pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day.
C = the Exercise Price then in effect for the applicable Warrant
Shares at the time of such exercise.
If the Warrant
Shares are issued in a Cashless Exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the 1933 Act,
the Warrant Shares take on the registered characteristics of the Warrants being exercised. For purposes of Rule 144(d) promulgated under
the 1933 Act, as in effect on the Subscription Date, it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed
to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this
Warrant was originally issued pursuant to the Warrant Purchase Agreement.
Notwithstanding
anything to the contrary herein, the Holder may also effect an “alternative cashless exercise” on or after the first Exercise
Date. In such event, the aggregate number of Warrant Shares issuable in such alternative cashless exercise pursuant to any given Notice
of Exercise electing to effect an alternative cashless exercise shall equal the product of (x) the aggregate number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise and (y) 0.75.
(e) Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares
to be issued pursuant to the terms hereof, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed
and resolve such dispute in accordance with Section 15.
(f) Limitations
on Exercises.
(i)
Beneficial Ownership. The Company shall not effect the exercise of any portion of this Warrant, and the Holder shall not have
the right to exercise any portion of this Warrant, pursuant to the terms and conditions of this Warrant and any such exercise shall be
null and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder together with the other
Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares
of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number
of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common
Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Warrant
with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable
upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of the other Attribution
Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without
limitation, any convertible notes or convertible preferred stock or warrants, including other SPA Warrants) beneficially owned by the
Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this
Section 1(f)(i). For purposes of this Section 1(f)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the
1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of this
Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected
in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice
by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported
Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of
outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing
of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s
beneficial ownership, as determined pursuant to this Section 1(f)(i), to exceed the Maximum Percentage, the Holder must notify the Company
of a reduced number of Warrant Shares to be acquired pursuant to such Exercise Notice (the number of shares by which such purchase is
reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder
any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder,
the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares
of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect
to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since
the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to
the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in
the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d)
of the 1934 Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial
ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled
ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after
the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the
Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such
increase not effective until the sixty-first (61st)
day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in
such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty- first (61st)
day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other
Attribution Parties and not to any other holder of SPA Warrants that is not an Attribution Party of the Holder. For purposes of clarity,
the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to
be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior
inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph
with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in
a manner otherwise than in strict conformity with the terms of this Section 1(f)(i) to the extent necessary to correct this paragraph
or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in
this Section 1(f)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation
contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
(ii) Principal
Market Regulation. The Company shall not issue any shares of Common Stock upon the exercise of this Warrant if the issuance of such
shares of Common Stock (taken together with the shares of Common Stock issued pursuant to the Warrant Purchase Agreement and such shares
of Common Stock issued or issuable upon the exercise of the SPA Warrants or otherwise pursuant to the terms of the SPA Warrants) would
exceed the aggregate number of shares of Common Stock which the Company may issue without breaching the Company’s obligations under
the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations,
the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval
of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of
such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall
be reasonably satisfactory to the Holder. In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s SPA
Warrants, the transferee shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion
of such SPA Warrants so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion
of the Exchange Cap Allocation so allocated to such transferee. Upon exercise in full of a holder’s SPA Warrants, the difference
(if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder
pursuant to the Warrant Purchase Agreement and upon such holder’s exercise in full of such SPA Warrants shall be allocated, to
the respective Exchange Cap Allocations of the remaining holders of SPA Warrants on a pro rata basis in proportion to the shares of Common
Stock underlying the SPA Warrants then held by each such holder of SPA Warrants. In the event that the Company is then prohibited from
issuing any shares of Common Stock pursuant to this Section 1(f)(ii) (the “Exchange Cap Shares”), in lieu of issuing
and delivering such Exchange Cap Shares to the Holder, the Company shall pay cash to the Holder in exchange for the cancellation of such
portion of this Warrant exercisable into such Exchange Cap Shares (the “Exchange Cap Payment Amount”) at a price equal
to the sum of (x) the product of (A) such number of Exchange Cap Shares and (B) the greatest Closing Sale Price of the Common Stock on
any Trading Day during the period commencing on the date the Holder delivers the applicable Exercise Notice with respect to such Exchange
Cap Shares to the Company and ending on the date of such payment under this Section 1(f)(ii) and (y) to the extent the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Exchange Cap
Shares, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith.
(g) Reservation
of Shares.
(i) Required
Reserve Amount. So long as this Warrant remains outstanding, the Company shall at all times keep reserved for issuance under this
Warrant a number of shares of Common Stock at least equal to 100% of the maximum number of shares of Common Stock as shall be necessary
to satisfy the Company’s obligation to issue shares of Common Stock under the SPA Warrants then outstanding (without regard to
any limitations on exercise) (the “Required Reserve Amount”); provided that at no time shall the number of shares
of Common Stock reserved pursuant to this Section 1(g)(i) be reduced other than proportionally in connection with any exercise or redemption
of SPA Warrants or such other event covered by Section 2(a) below. The Required Reserve Amount (including, without limitation, each increase
in the number of shares so reserved) shall be allocated pro rata among the holders of the SPA Warrants based on number of shares of Common
Stock issuable upon exercise of SPA Warrants held by each holder on the Closing Date (without regard to any limitations on exercise)
or increase in the number of reserved shares, as the case may be (the “Authorized Share Allocation”). In the event
that a holder shall sell or otherwise transfer any of such holder’s SPA Warrants, each transferee shall be allocated a pro rata
portion of such holder’s Authorized Share Allocation. Any shares of Common Stock reserved and allocated to any Person which ceases
to hold any SPA Warrants shall be allocated to the remaining holders of SPA Warrants, pro rata based on the number of shares of Common
Stock issuable upon exercise of the SPA Warrants then held by such holders (without regard to any limitations on exercise).
(ii) Insufficient
Authorized Shares. If, notwithstanding Section 1(g)(i) above, and not in limitation thereof, at any time while any of the SPA Warrants
remain outstanding, the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its
obligation to reserve the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately
take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company
to reserve the Required Reserve Amount for all the SPA Warrants then outstanding. Without limiting the generality of the foregoing sentence,
as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days after
the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase
in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with
a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of
Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal. Notwithstanding the
foregoing, if any such time of an Authorized Share Failure, the Company is able to obtain the written consent of a majority of the shares
of its issued and outstanding shares of Common Stock to approve the increase in the number of authorized shares of Common Stock, the
Company may satisfy this obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule
14C. In the event that the Company is prohibited from issuing shares of Common Stock upon an exercise of this Warrant due to the failure
by the Company to have sufficient shares of Common Stock available out of the authorized but unissued shares of Common Stock (such unavailable
number of shares of Common Stock, the “Authorization Failure Shares”), in lieu of delivering such Authorization Failure
Shares to the Holder, the Company shall pay cash in exchange for the cancellation of such portion of this Warrant exercisable into such
Authorization Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorization Failure Shares and (y)
the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder delivers the
applicable Exercise Notice with respect to such Authorization Failure Shares to the Company and ending on the date of such issuance and
payment under this Section 1(g); and (ii) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Holder of Authorization Failure Shares, any Buy-In Payment Amount, brokerage commissions
and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith. Nothing contained in this Section 1(g) shall
limit any obligations of the Company under any provision of the Warrant Purchase Agreement .
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. THE EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
ARE SUBJECT TO ADJUSTMENT FROM TIME TO TIME AS SET FORTH IN THIS SECTION 2.
(a) Stock
Dividends and Splits. Without limiting any provision of Section 2(a), Section 3 or Section 4, if the Company, at any time on or after
the Subscription Date, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes
a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii)
combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a
smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares
of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or
combination. If any event requiring an adjustment under this paragraph occurs during the period that an Exercise Price is calculated
hereunder, then the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Adjustment
Upon Issuance of Shares of Common Stock. If and whenever on or after the Subscription Date and prior to the Expiration Date, the
Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 2 is deemed
to have granted, issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by
or for the account of the Company, but excluding any Excluded Securities granted issued or sold or deemed to have been granted issued
or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Exercise Price in
effect immediately prior to such granting, issuance or sale or deemed granting, issuance or sale (such Exercise Price then in effect
is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately
after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all
purposes of the foregoing (including, without limitation, determining the adjusted Exercise Price and the New Issuance Price under this
Section 2(a)), the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options
and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon
conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the
terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting, issuance or sale (or the time of execution of such agreement to grant, issue or
sell, as applicable) of such Option for such price per share. For purposes of this Section 2(b)(i), the “lowest price per share
for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange
of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal
to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to
any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable)
of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise
of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share
of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or
upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to
the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting,
issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus
the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person).
Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common
Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance
of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or
exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall
be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution
of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this
Section 2(b)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the
lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance
or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange
of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible
Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder
of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such
Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such
Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon
the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise
pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for
which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 2(a), except as contemplated
below, no further adjustment of the Exercise Price shall be made by reason of such issuance or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than
proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 2(a)), the Exercise
Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would have been in effect at such
time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or
increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section
2(b)(i), if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was
outstanding as of the Subscription Date) are increased or decreased in the manner described in the immediately preceding sentence, then
such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall
be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 2(a) shall be made
if such adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”), together comprising
one integrated transaction, (or one or more transactions if such issuances or sales or deemed issuances or sales of securities of the
Company either (A) have at least one investor or purchaser in common,
(B) are consummated in reasonable proximity to each other and/or (C) are consummated under the same plan of financing) the aggregate
consideration per share of Common Stock with respect to such Primary Security shall be deemed to be equal to the difference of (x) the
lowest price per share for which one share of Common Stock was issued (or was deemed to be issued pursuant to Section 2(b)(i) or 2(b)(ii)
above, as applicable) in such integrated transaction solely with respect to such Primary Security, minus (y) with respect to such Secondary
Securities, the sum of (I) the Black Scholes Consideration Value of each such Option, if any, (II) the fair market value (as determined
by the Holder in good faith) or the Black Scholes Consideration Value, as applicable, of such Adjustment Right, if any, and (III)
the fair market value (as determined by the Holder) of such Convertible Security, if any, in each case, as determined on a per
share basis in accordance with this Section 2(b)(iv). If any shares of Common Stock, Options or Convertible Securities are issued or
sold or deemed to have been issued or sold for cash, the consideration received therefor (for the purpose of determining the consideration
paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration
Value) will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options
or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company
(for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose
of the calculation of the Black Scholes Consideration Value) will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt.
If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with
any merger in which the Company is the surviving entity, the amount of consideration therefor (for the purpose of determining the consideration
paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration
Value) will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable
to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than
cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement
within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value
of such consideration will be determined within five (5) Trading Days after the tenth (10th)
day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination
of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall
be borne by the Company.
(v) Record
Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend
or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares
of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the
shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase (as the case may be).
(c) Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to Section 2(a) above only, the number of Warrant
Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment
the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise
Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).
(d) Other
Events. In the event that the Company (or any Subsidiary (as defined in the Warrant Purchase Agreement )) shall take any action to
which the provisions hereof are not strictly applicable, or, if applicable, would not operate to protect the Holder from dilution or
if any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including,
without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s
board of directors shall in good faith determine and implement an appropriate adjustment in the Exercise Price and the number of Warrant
Shares (if applicable) so as to protect the rights of the Holder, provided that no such adjustment pursuant to this Section 2(d) will
increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2, provided further
that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the
Company’s board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized
standing to make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose fees and
expenses shall be borne by the Company. This Section 2(d) shall not apply to any issuances or deemed issuances of any Excluded Securities.
(e)
Calculations. All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th
of a share, as applicable. The number of shares of Common Stock outstanding at any given time
shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered
an issuance or sale of Common Stock.
(f) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the term
of this Warrant, with the prior written consent of the Required Holders (as defined in the Warrant Purchase Agreement ), reduce the then
current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
3. RIGHTS
UPON DISTRIBUTION OF ASSETS. IN ADDITION TO ANY ADJUSTMENTS PURSUANT TO SECTION 2 ABOVE OR SECTION 4(A) BELOW, IF THE COMPANY SHALL
DECLARE OR MAKE ANY DIVIDEND OR OTHER DISTRIBUTION OF ITS ASSETS (OR RIGHTS TO ACQUIRE ITS ASSETS) TO HOLDERS OF SHARES OF COMMON STOCK,
BY WAY OF RETURN OF CAPITAL OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY DISTRIBUTION OF CASH, STOCK OR OTHER SECURITIES, PROPERTY,
OPTIONS, EVIDENCE OF INDEBTEDNESS OR ANY OTHER ASSETS BY WAY OF A DIVIDEND, SPIN OFF, RECLASSIFICATION, CORPORATE REARRANGEMENT, SCHEME
OF ARRANGEMENT OR OTHER SIMILAR TRANSACTION) (A “DISTRIBUTION”), AT ANY TIME AFTER THE ISSUANCE OF THIS WARRANT, THEN,
IN EACH SUCH CASE, THE HOLDER SHALL BE ENTITLED TO PARTICIPATE IN SUCH DISTRIBUTION TO THE SAME EXTENT THAT THE HOLDER WOULD HAVE PARTICIPATED
THEREIN IF THE HOLDER HAD HELD THE NUMBER OF SHARES OF COMMON STOCK ACQUIRABLE UPON COMPLETE EXERCISE OF THIS WARRANT (WITHOUT REGARD
TO ANY LIMITATIONS OR RESTRICTIONS ON EXERCISE OF THIS WARRANT, INCLUDING WITHOUT LIMITATION, THE MAXIMUM PERCENTAGE) IMMEDIATELY BEFORE
THE DATE ON WHICH A RECORD IS TAKEN FOR SUCH DISTRIBUTION, OR, IF NO SUCH RECORD IS TAKEN, THE DATE AS OF WHICH THE RECORD HOLDERS OF
SHARES OF COMMON STOCK ARE TO BE DETERMINED FOR THE PARTICIPATION IN SUCH DISTRIBUTION (PROVIDED, HOWEVER, THAT TO THE EXTENT THAT THE
HOLDER’S RIGHT TO PARTICIPATE IN ANY SUCH DISTRIBUTION WOULD RESULT IN THE HOLDER AND THE OTHER ATTRIBUTION PARTIES EXCEEDING THE
MAXIMUM PERCENTAGE, THEN THE HOLDER SHALL NOT BE ENTITLED TO PARTICIPATE IN SUCH DISTRIBUTION TO THE EXTENT OF THE MAXIMUM PERCENTAGE
(AND SHALL NOT BE ENTITLED TO BENEFICIAL OWNERSHIP OF SUCH SHARES OF COMMON STOCK AS A RESULT OF SUCH DISTRIBUTION (AND BENEFICIAL OWNERSHIP)
TO THE EXTENT OF ANY SUCH EXCESS) AND THE PORTION OF SUCH DISTRIBUTION SHALL BE HELD IN ABEYANCE FOR THE BENEFIT OF THE HOLDER UNTIL
SUCH TIME OR TIMES, IF EVER, AS ITS RIGHT THERETO WOULD NOT RESULT IN THE HOLDER AND THE OTHER ATTRIBUTION PARTIES EXCEEDING THE MAXIMUM
PERCENTAGE, AT WHICH TIME OR TIMES THE HOLDER SHALL BE GRANTED SUCH DISTRIBUTION (AND ANY DISTRIBUTIONS DECLARED OR MADE ON SUCH INITIAL
DISTRIBUTION OR ON ANY SUBSEQUENT DISTRIBUTION HELD SIMILARLY IN ABEYANCE) TO THE SAME EXTENT AS IF THERE HAD BEEN NO SUCH LIMITATION).
4. PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Sections 2 or 3 above, if at any time the Company grants, issues or sells any
Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of
any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares
of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this
Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issuance or sale of such Purchase Rights (provided, however, that to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties
exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum
Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and
beneficial ownership) to the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance for the benefit
of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties
exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued
or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there
had been no such limitation).
(b) Fundamental
Transactions. The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in
writing all of the obligations of the Company under this Warrant and the Warrant Purchase Agreement in accordance with the provisions
of this Section 4(b) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior
to such Fundamental Transaction, including agreements to deliver to the Holder in exchange for this Warrant a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant, including, without limitation,
which is exercisable for a corresponding number of shares of capital stock equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction,
and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments
to the number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction) and (ii) the Successor Entity (including its Parent Entity) is
a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the consummation of each
Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the applicable
Fundamental Transaction, the provisions of this Warrant and the Warrant Purchase Agreement referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Warrant Purchase Agreement with the same effect as if such Successor Entity had been
named as the Company herein. Upon consummation of each Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation
that there shall be issued upon exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction,
in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections
3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to the applicable
Fundamental Transaction, such shares of publicly traded common stock (or its equivalent) of the Successor Entity (including its Parent
Entity) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant
been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this
Warrant), as adjusted in accordance with the provisions of this Warrant. Notwithstanding the foregoing, and without limiting Section
1(f) hereof, the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 4(b) to permit
the Fundamental Transaction without the assumption of this Warrant. In addition to and not in substitution for any other rights hereunder,
prior to the consummation of each Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive
securities or other assets with respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company
shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant
at any time after the consummation of the applicable Fundamental Transaction but prior to the Expiration Date, in lieu of the shares
of the Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a)
above, which shall continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior to such Fundamental Transaction,
such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription
rights) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant
been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this
Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder.
(c) Black
Scholes Value. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the Holder delivered at
any time commencing on the earliest to occur of (x) the public disclosure of any Fundamental Transaction, (y) the consummation of any
Fundamental Transaction and (z) the Holder first becoming aware of any Fundamental Transaction through the date that is ninety (90) days
after the public disclosure of the consummation of such Fundamental Transaction by the Company pursuant to a Current Report on Form 8-K
filed with the SEC, the Company or the Successor Entity (as the case may be) shall purchase this Warrant from the Holder on the date
of such request by paying to the Holder cash in an amount equal to the Black Scholes Value. Payment of such amounts shall be made by
the Company (or at the Company’s direction) to the Holder on or prior to the later of (x) the second
(2nd) Trading Day after the date of such request
and (y) the date of consummation of such Fundamental Transaction. In no event shall the Company be required to make any payments pursuant
to this Section 4(c) earlier than the date of consummation of such Fundamental Transaction.
(d) Application.
The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events and shall
be applied as if this Warrant (and any such subsequent warrants) were fully exercisable and without regard to any limitations on the
exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied however
with respect to shares of capital stock registered under the 1934 Act and thereafter receivable upon exercise of this Warrant (or any
such other warrant)).
5.
NONCIRCUMVENTION. THE COMPANY HEREBY COVENANTS AND AGREES THAT THE COMPANY WILL NOT, BY AMENDMENT OF ITS CERTIFICATE OF INCORPORATION
(AS DEFINED IN THE WARRANT PURCHASE AGREEMENT ), BYLAWS (AS DEFINED IN THE WARRANT PURCHASE AGREEMENT ) OR THROUGH ANY REORGANIZATION,
TRANSFER OF ASSETS, CONSOLIDATION, MERGER, SCHEME OF ARRANGEMENT, DISSOLUTION, ISSUANCE OR SALE OF SECURITIES, OR ANY OTHER VOLUNTARY
ACTION, AVOID OR SEEK TO AVOID THE OBSERVANCE OR PERFORMANCE OF ANY OF THE TERMS OF THIS WARRANT, AND WILL AT ALL TIMES IN GOOD FAITH
CARRY OUT ALL THE PROVISIONS OF THIS WARRANT AND TAKE ALL ACTION AS MAY BE REQUIRED TO PROTECT THE RIGHTS OF THE HOLDER. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, THE COMPANY (A) SHALL NOT INCREASE THE PAR VALUE OF ANY SHARES OF COMMON STOCK RECEIVABLE UPON THE EXERCISE
OF THIS WARRANT ABOVE THE EXERCISE PRICE THEN IN EFFECT, AND (B) SHALL TAKE ALL SUCH ACTIONS AS MAY BE NECESSARY OR APPROPRIATE IN ORDER
THAT THE COMPANY MAY VALIDLY AND LEGALLY ISSUE FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK UPON THE EXERCISE OF THIS WARRANT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF AFTER THE SIXTY (60) CALENDAR DAY ANNIVERSARY OF THE ISSUANCE DATE, THE HOLDER IS
NOT PERMITTED TO EXERCISE THIS WARRANT IN FULL FOR ANY REASON (OTHER THAN PURSUANT TO RESTRICTIONS SET FORTH IN SECTION 1(F) HEREOF),
THE COMPANY SHALL USE ITS BEST EFFORTS TO PROMPTLY REMEDY SUCH FAILURE, INCLUDING, WITHOUT LIMITATION, OBTAINING SUCH CONSENTS OR APPROVALS
AS NECESSARY TO PERMIT SUCH EXERCISE INTO SHARES OF COMMON STOCK.
6. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE HOLDER, SOLELY IN ITS CAPACITY AS A HOLDER
OF THIS WARRANT, SHALL NOT BE ENTITLED TO VOTE OR RECEIVE DIVIDENDS OR BE DEEMED THE HOLDER OF SHARE CAPITAL OF THE COMPANY FOR ANY PURPOSE,
NOR SHALL ANYTHING CONTAINED IN THIS WARRANT BE CONSTRUED TO CONFER UPON THE HOLDER, SOLELY IN ITS CAPACITY AS THE HOLDER OF THIS WARRANT,
ANY OF THE RIGHTS OF A STOCKHOLDER OF THE COMPANY OR ANY RIGHT TO VOTE, GIVE OR WITHHOLD CONSENT TO ANY CORPORATE ACTION (WHETHER ANY
REORGANIZATION, ISSUE OF STOCK, RECLASSIFICATION OF STOCK, CONSOLIDATION, MERGER, CONVEYANCE OR OTHERWISE), RECEIVE NOTICE OF MEETINGS,
RECEIVE DIVIDENDS OR SUBSCRIPTION RIGHTS, OR OTHERWISE, PRIOR TO THE ISSUANCE TO THE HOLDER OF THE WARRANT SHARES WHICH IT IS THEN ENTITLED
TO RECEIVE UPON THE DUE EXERCISE OF THIS WARRANT. IN ADDITION, NOTHING CONTAINED IN THIS WARRANT SHALL BE CONSTRUED AS IMPOSING ANY LIABILITIES
ON THE HOLDER TO PURCHASE ANY SECURITIES (UPON EXERCISE OF THIS WARRANT OR OTHERWISE) OR AS A STOCKHOLDER OF THE COMPANY, WHETHER SUCH
LIABILITIES ARE ASSERTED BY THE COMPANY OR BY CREDITORS OF THE COMPANY. NOTWITHSTANDING THIS SECTION 6, THE COMPANY SHALL PROVIDE THE
HOLDER WITH COPIES OF THE SAME NOTICES AND OTHER INFORMATION GIVEN TO THE STOCKHOLDERS OF THE COMPANY GENERALLY, CONTEMPORANEOUSLY WITH
THE GIVING THEREOF TO THE STOCKHOLDERS.
7. REISSUANCE
OF WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may
request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder
representing the right to purchase the number of Warrant Shares not being transferred.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares
as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional shares of Common Stock shall
be given.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant
(i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase
the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c),
the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants
issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have
an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights
and conditions as this Warrant.
8. NOTICES.
WHENEVER NOTICE IS REQUIRED TO BE GIVEN UNDER THIS WARRANT, UNLESS OTHERWISE PROVIDED HEREIN, SUCH NOTICE SHALL BE GIVEN TO ACLARION,
INC. 8181 ARISTA PLACE, SUITE 100 BROOMFIELD, CO 80021, TELEPHONE: (303) 927-8857 ATTENTION: JOHN LORBIECKI, CHIEF FINANCIAL OFFICER
E-Mail: JLORBIECKI@ACLARION.COM. THE COMPANY SHALL PROVIDE THE HOLDER WITH PROMPT WRITTEN NOTICE OF ALL ACTIONS TAKEN PURSUANT TO THIS
WARRANT (OTHER THAN THE ISSUANCE OF SHARES OF COMMON STOCK UPON EXERCISE IN ACCORDANCE WITH THE TERMS HEREOF), INCLUDING IN REASONABLE
DETAIL A DESCRIPTION OF SUCH ACTION AND THE REASON THEREFOR. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY WILL GIVE
WRITTEN NOTICE TO THE HOLDER (I) IMMEDIATELY UPON EACH ADJUSTMENT OF THE EXERCISE PRICE AND THE NUMBER OF WARRANT SHARES, SETTING FORTH
IN REASONABLE DETAIL, AND CERTIFYING, THE CALCULATION OF SUCH ADJUSTMENT(S), (II) AT LEAST FIFTEEN (15) DAYS PRIOR TO THE DATE ON WHICH
THE COMPANY CLOSES ITS BOOKS OR TAKES A RECORD (A) WITH RESPECT TO ANY DIVIDEND OR DISTRIBUTION UPON THE SHARES OF COMMON STOCK, (B)
WITH RESPECT TO ANY GRANTS, ISSUANCES OR SALES OF ANY OPTIONS, CONVERTIBLE SECURITIES OR RIGHTS TO PURCHASE STOCK, WARRANTS, SECURITIES
OR OTHER PROPERTY TO HOLDERS OF SHARES OF COMMON STOCK OR (C) FOR DETERMINING RIGHTS TO VOTE WITH RESPECT TO ANY FUNDAMENTAL TRANSACTION,
DISSOLUTION OR LIQUIDATION, PROVIDED IN EACH CASE THAT SUCH INFORMATION SHALL BE MADE KNOWN TO THE PUBLIC PRIOR TO OR IN CONJUNCTION
WITH SUCH NOTICE BEING PROVIDED TO THE HOLDER, AND (III) AT LEAST TEN (10) TRADING DAYS PRIOR TO THE CONSUMMATION OF ANY FUNDAMENTAL
TRANSACTION. TO THE EXTENT THAT ANY NOTICE PROVIDED HEREUNDER CONSTITUTES, OR CONTAINS, MATERIAL, NON-PUBLIC INFORMATION REGARDING THE
COMPANY OR ANY OF ITS SUBSIDIARIES, THE COMPANY SHALL SIMULTANEOUSLY FILE SUCH NOTICE WITH THE SEC PURSUANT TO A CURRENT REPORT ON FORM
8-K. IF THE COMPANY OR ANY OF ITS SUBSIDIARIES PROVIDES MATERIAL NON-PUBLIC INFORMATION TO THE HOLDER THAT IS NOT SIMULTANEOUSLY FILED
IN A CURRENT REPORT ON FORM 8-K AND THE HOLDER HAS NOT AGREED TO RECEIVE SUCH MATERIAL NON-PUBLIC INFORMATION, THE COMPANY HEREBY COVENANTS
AND AGREES THAT THE HOLDER SHALL NOT HAVE ANY DUTY OF CONFIDENTIALITY TO THE COMPANY, ANY OF ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS WITH RESPECT TO, OR A DUTY TO ANY OF THE FOREGOING NOT TO TRADE ON THE BASIS OF,
SUCH MATERIAL NON-PUBLIC INFORMATION. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE TIME OF EXECUTION SPECIFIED BY THE HOLDER IN EACH
EXERCISE NOTICE SHALL BE DEFINITIVE AND MAY NOT BE DISPUTED OR CHALLENGED BY THE COMPANY.
9. DISCLOSURE.
UPON DELIVERY BY THE COMPANY TO THE HOLDER (OR RECEIPT BY THE COMPANY FROM THE HOLDER) OF ANY NOTICE IN ACCORDANCE WITH THE TERMS OF
THIS WARRANT, UNLESS THE COMPANY HAS IN GOOD FAITH DETERMINED THAT THE MATTERS RELATING TO SUCH NOTICE DO NOT CONSTITUTE MATERIAL, NON-PUBLIC
INFORMATION RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, THE COMPANY SHALL ON OR PRIOR TO 9:00 AM, NEW YORK CITY TIME ON THE BUSINESS
DAY IMMEDIATELY FOLLOWING SUCH NOTICE DELIVERY DATE, PUBLICLY DISCLOSE SUCH MATERIAL, NON-PUBLIC INFORMATION ON A CURRENT REPORT ON FORM
8-K OR OTHERWISE. IN THE EVENT THAT THE COMPANY BELIEVES THAT A NOTICE CONTAINS MATERIAL, NON-PUBLIC INFORMATION RELATING TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, THE COMPANY SO SHALL INDICATE TO THE HOLDER EXPLICITLY IN WRITING IN SUCH NOTICE (OR IMMEDIATELY UPON RECEIPT
OF NOTICE FROM THE HOLDER, AS APPLICABLE), AND IN THE ABSENCE OF ANY SUCH WRITTEN INDICATION IN SUCH NOTICE (OR NOTIFICATION FROM THE
COMPANY IMMEDIATELY UPON RECEIPT OF NOTICE FROM THE HOLDER), THE HOLDER SHALL BE ENTITLED TO PRESUME THAT INFORMATION CONTAINED IN THE
NOTICE DOES NOT CONSTITUTE MATERIAL, NON-PUBLIC INFORMATION RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES.
10. ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company
and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain
from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an
officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed,
written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company,
may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information
to any third party.
11. AMENDMENT
AND WAIVER. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PROVISIONS OF THIS WARRANT (OTHER THAN SECTION 1(F)) MAY BE AMENDED AND THE
COMPANY MAY TAKE ANY ACTION HEREIN PROHIBITED, OR OMIT TO PERFORM ANY ACT HEREIN REQUIRED TO BE PERFORMED BY IT, ONLY IF THE COMPANY
HAS OBTAINED THE WRITTEN CONSENT OF THE HOLDER. NO WAIVER SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE
OF THE WAIVING PARTY.
12. SEVERABILITY.
IF ANY PROVISION OF THIS WARRANT IS PROHIBITED BY LAW OR OTHERWISE DETERMINED TO BE INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THE PROVISION THAT WOULD OTHERWISE BE PROHIBITED, INVALID OR UNENFORCEABLE SHALL BE DEEMED AMENDED TO APPLY TO THE BROADEST
EXTENT THAT IT WOULD BE VALID AND ENFORCEABLE, AND THE INVALIDITY OR UNENFORCEABILITY OF SUCH PROVISION SHALL NOT AFFECT THE VALIDITY
OF THE REMAINING PROVISIONS OF THIS WARRANT SO LONG AS THIS WARRANT AS SO MODIFIED CONTINUES TO EXPRESS, WITHOUT MATERIAL CHANGE, THE
ORIGINAL INTENTIONS OF THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND THE PROHIBITED NATURE, INVALIDITY OR UNENFORCEABILITY OF THE PROVISION(S)
IN QUESTION DOES NOT SUBSTANTIALLY IMPAIR THE RESPECTIVE EXPECTATIONS OR RECIPROCAL OBLIGATIONS OF THE PARTIES OR THE PRACTICAL REALIZATION
OF THE BENEFITS THAT WOULD OTHERWISE BE CONFERRED UPON THE PARTIES. THE PARTIES WILL ENDEAVOR IN GOOD FAITH NEGOTIATIONS TO REPLACE THE
PROHIBITED, INVALID OR UNENFORCEABLE PROVISION(S) WITH A VALID PROVISION(S), THE EFFECT OF WHICH COMES AS CLOSE AS POSSIBLE TO THAT OF
THE PROHIBITED, INVALID OR UNENFORCEABLE PROVISION(S).
13. GOVERNING
LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS WARRANT SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY PROVISION OF LAW OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF DELAWARE. THE COMPANY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO THE COMPANY AT THE ADDRESS SET
FORTH IN SECTION 8 OF THIS WARRANT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
OR IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, IF SUCH COURTS LACK SUBJECT-MATTER JURISDICTION, IN THE SUPERIOR COURT OF THE
STATE OF DELAWARE), FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY
OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. NOTHING CONTAINED HEREIN SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION AGAINST THE COMPANY IN ANY OTHER JURISDICTION TO COLLECT ON THE COMPANY’S OBLIGATIONS TO THE
HOLDER, TO REALIZE ON ANY COLLATERAL OR ANY OTHER SECURITY FOR SUCH OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT RULING IN FAVOR
OF THE HOLDER. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
14. CONSTRUCTION;
HEADINGS. THIS WARRANT SHALL BE DEEMED TO BE JOINTLY DRAFTED BY THE COMPANY AND THE HOLDER AND SHALL NOT BE CONSTRUED AGAINST ANY
PERSON AS THE DRAFTER HEREOF. THE HEADINGS OF THIS WARRANT ARE FOR CONVENIENCE OF REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT THE
INTERPRETATION OF, THIS WARRANT. TERMS USED IN THIS WARRANT BUT DEFINED IN THE WARRANT PURCHASE AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED
TO SUCH TERMS ON THE CLOSING DATE IN THE WARRANT PURCHASE AGREEMENT UNLESS OTHERWISE CONSENTED TO IN WRITING BY THE HOLDER.
15. DISPUTE
RESOLUTION.
(a) Submission
to Dispute Resolution.
(i) In the
case of a dispute relating to the Exercise Price, the Closing Sale Price, the Bid Price, Black Scholes Consideration Value, Black Scholes
Value or fair market value or the arithmetic calculation of the number of Warrant Shares (as the case may be) (including, without limitation,
a dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute
to the other party via facsimile (A) if by the Company, within two (2) Business Days after the occurrence of the circumstances giving
rise to such dispute or (B) if by the Holder, at any time after the Holder learned of the circumstances giving rise to such dispute.
If the Holder and the Company are unable to promptly resolve such dispute relating to such Exercise Price, such Closing Sale Price, such
Bid Price, such Black Scholes Consideration Value, Black Scholes Value or such fair market value or such arithmetic
calculation of the number of Warrant Shares (as the case may be), at any time after the second (2nd)
Business Day following such initial notice by the Company or the Holder (as the case may be) of such dispute to the Company or the Holder
(as the case may be), then the Holder may, at its sole option, select an independent, reputable investment bank to resolve such dispute.
(ii) The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 15 and (B) written documentation supporting its position with respect to such dispute,
in each case, no later than 5:00 p.m. (New York time) by the fifth (5th)
Business Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”)
(the documents referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required
Dispute Documentation”) (it being understood and agreed that if either the Holder or the Company fails to so deliver all of
the Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute
Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation or other support
to such investment bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required
Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to
in writing by both the Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall
be entitled to deliver or submit any written documentation or other support to such investment bank in connection with such dispute (other
than the Required Dispute Documentation).
(iii) The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder
of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses
of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.
(b) Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 15 constitutes an agreement to arbitrate between the Company and
the Holder (and constitutes an arbitration agreement) under the Delaware Rapid Arbitration Act, as amended, (ii) a dispute relating to
the Exercise Price includes, without limitation, disputes as to (A) whether an issuance or sale or deemed issuance or sale of Common
Stock occurred under Section 2(a), (B) the consideration per share at which an issuance or deemed issuance of Common Stock occurred,
(C) whether any issuance or sale or deemed issuance or sale of Common Stock was an issuance or sale or deemed issuance or sale of Excluded
Securities, (D) whether an agreement, instrument, security or the like constitutes and Option or Convertible Security and (E) whether
a Dilutive Issuance occurred, (iii) the terms of this Warrant and the Warrant Purchase Agreement shall serve as the basis for the selected
investment bank’s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized)
to make all findings, determinations and the like that such investment bank determines are required to be made by such investment bank
in connection with its resolution of such dispute (including, without limitation, determining (A) whether an issuance or sale or deemed
issuance or sale of Common Stock occurred under Section 2(a), (B) the consideration per share at which an issuance or deemed issuance
of Common Stock occurred, (C) whether any issuance or sale or deemed issuance or sale of Common Stock was an issuance or sale or deemed
issuance or sale of Excluded Securities, (D) whether an agreement, instrument, security or the like constitutes and Option or Convertible
Security and (E) whether a Dilutive Issuance occurred) and in resolving such dispute such investment bank shall apply such findings,
determinations and the like to the terms of this Warrant and the Warrant Purchase Agreement, (iv) the Holder (and only the Holder), in
its sole discretion, shall have the right to submit any dispute described in this Section 15 to the United States District Court for
the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such courts lack subject-matter jurisdiction, in
the Superior Court of the State of Delaware) in lieu of utilizing the procedures set forth in this Section 15 and (v) nothing in this
Section 15 shall limit the Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation, with
respect to any matters described in this Section 15).
16. REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. THE REMEDIES PROVIDED IN THIS WARRANT SHALL BE CUMULATIVE AND
IN ADDITION TO ALL OTHER REMEDIES AVAILABLE UNDER THIS WARRANT AND THE WARRANT PURCHASE AGREEMENT, AT LAW OR IN EQUITY (INCLUDING A DECREE
OF SPECIFIC PERFORMANCE AND/OR OTHER INJUNCTIVE RELIEF), AND NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER TO PURSUE ACTUAL AND
CONSEQUENTIAL DAMAGES FOR ANY FAILURE BY THE COMPANY TO COMPLY WITH THE TERMS OF THIS WARRANT. THE COMPANY COVENANTS TO THE HOLDER THAT
THERE SHALL BE NO CHARACTERIZATION CONCERNING THIS INSTRUMENT OTHER THAN AS EXPRESSLY PROVIDED HEREIN. AMOUNTS SET FORTH OR PROVIDED
FOR HEREIN WITH RESPECT TO PAYMENTS, EXERCISES AND THE LIKE (AND THE COMPUTATION THEREOF) SHALL BE THE AMOUNTS TO BE RECEIVED BY THE
HOLDER AND SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, BE SUBJECT TO ANY OTHER OBLIGATION OF THE COMPANY (OR THE PERFORMANCE THEREOF).
THE COMPANY ACKNOWLEDGES THAT A BREACH BY IT OF ITS OBLIGATIONS HEREUNDER WILL CAUSE IRREPARABLE HARM TO THE HOLDER AND THAT THE REMEDY
AT LAW FOR ANY SUCH BREACH MAY BE INADEQUATE. THE COMPANY THEREFORE AGREES THAT, IN THE EVENT OF ANY SUCH BREACH OR THREATENED BREACH,
THE HOLDER OF THIS WARRANT SHALL BE ENTITLED, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, TO SPECIFIC PERFORMANCE AND/OR TEMPORARY,
PRELIMINARY AND PERMANENT INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION IN ANY SUCH CASE WITHOUT THE
NECESSITY OF PROVING ACTUAL DAMAGES AND WITHOUT POSTING A BOND OR OTHER SECURITY. THE COMPANY SHALL PROVIDE ALL INFORMATION AND DOCUMENTATION
TO THE HOLDER THAT IS REQUESTED BY THE HOLDER TO ENABLE THE HOLDER TO CONFIRM THE COMPANY’S COMPLIANCE WITH THE TERMS AND CONDITIONS
OF THIS WARRANT (INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH SECTION 2 HEREOF). THE ISSUANCE OF SHARES AND CERTIFICATES FOR SHARES
AS CONTEMPLATED HEREBY UPON THE EXERCISE OF THIS WARRANT SHALL BE MADE WITHOUT CHARGE TO THE HOLDER OR SUCH SHARES FOR ANY ISSUANCE TAX
OR OTHER COSTS IN RESPECT THEREOF, PROVIDED THAT THE COMPANY SHALL NOT BE REQUIRED TO PAY ANY TAX WHICH MAY BE PAYABLE IN RESPECT OF
ANY TRANSFER INVOLVED IN THE ISSUANCE AND DELIVERY OF ANY CERTIFICATE IN A NAME OTHER THAN THE HOLDER OR ITS AGENT ON ITS BEHALF.
17. PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Warrant is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding or the holder otherwise takes action to collect amounts due under this Warrant
or to enforce the provisions of this Warrant or (b) there occurs any bankruptcy, reorganization, receivership of the company or other
proceedings affecting company creditors’ rights and involving a claim under this Warrant, then the Company shall pay the costs
incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership
or other proceeding, including, without limitation, attorneys’ fees and disbursements.
18. TRANSFER.
THIS WARRANT MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED WITHOUT THE CONSENT OF THE COMPANY.
19. CERTAIN
DEFINITIONS. FOR PURPOSES OF THIS WARRANT, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(a) “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 2) of shares of Common Stock (other than rights of the type described in
Section 3 and 4 hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with
respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
(d) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control
with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly
or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such Person whether by contract or otherwise.
(e) “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which shares of Common Stock, restricted stock units and options to purchase Common Stock may be issued
to any employee, consultant, officer or director for services provided to the Company in their capacity as such. Approved Stock Plan
shall also include equity grants of shares of Common Stock, restricted stock units and options to purchase Common Stock approved the
Company’s board of directors (or the compensation committee thereof) to any employee, consultant, officer or director for services
provided to the Company in their capacity as such and made outside of a plan as permitted by the inducement grant exception under the
Nasdaq listing rules.
(f) “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the
Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any
of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing
and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s
and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject
collectively the Holder and all other Attribution Parties to the Maximum Percentage.
(g) “Bid
Price” means, for any security as of the particular time of determination, the bid price for such security on the Principal
Market as reported by Bloomberg as of such time of determination, or, if the Principal Market is not the principal securities exchange
or trading market for such security, the bid price of such security on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg as of such time of determination, or if the foregoing does not apply, the bid price
of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg as of such
time of determination, or, if no bid price is reported for such security by Bloomberg as of such time of determination, the average of
the bid prices of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding
to its functions of reporting prices) as of such time of determination. If the Bid Price cannot be calculated for a security as of the
particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination shall
be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon
the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 15. All such
determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during
such period.
(h) “Black
Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment Right (as the case
may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading
Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option
or Convertible Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the remaining term of such Option, Convertible Security or Adjustment Right (as the case may be) as of the date of issuance of such
Option, Convertible Security or Adjustment Right (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal
to the greater of 100% and the 30 day volatility obtained from the “HVT” function on Bloomberg (determined utilizing a 365
day annualization factor) as of the Trading Day immediately following the date of issuance of such Option, Convertible Security or Adjustment
Right (as the case may be).
(i)
“Black Scholes Value” means the value of the unexercised portion of this Warrant remaining on the date of the Holder’s
request pursuant to Section 4(c), which value is calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the greater of (1) the highest Closing Sale Price of the Common
Stock during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction
(or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request
pursuant to Section 4(c) and (2) the sum of the price per share being offered in cash in the applicable Fundamental Transaction (if any)
plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii) a strike price equal
to the Exercise Price in effect on the date of the Holder’s request pursuant to Section 4(c), (iii) a risk-free interest rate corresponding
to the U.S. Treasury rate for a period equal to the greater of (1) the remaining term of this Warrant as of the date of the Holder’s
request pursuant to Section 4(c) and (2) the remaining term of this Warrant as of the date of consummation of the applicable Fundamental
Transaction or as of the date of the Holder’s request pursuant to Section 4(c) if such request is prior to the date of the consummation
of the applicable Fundamental Transaction, (iv) a zero cost of borrow and (v) an expected volatility equal to the greater of 100% and
the 30 day volatility obtained from the “HVT” function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the earliest to occur of (A) the public disclosure of the applicable Fundamental Transaction
and (B) the date of the Holder’s request pursuant to Section 4(c).
(j) “Bloomberg”
means Bloomberg, L.P.
(k) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential eFmployee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
(l) “Closing
Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market,
as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing
trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal
Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal
securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not
apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported
by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers
for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices).
If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price
of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and
the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the
procedures in Section 15. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination
or other similar transaction during such period.
(m) “Common
Stock” means (i) the Company’s shares of common stock, $0.0001 par value per share, and (ii) any capital stock into which
such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.
(n) “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares
of Common Stock.
(o) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the
Nasdaq Capital Market or the Principal Market.
(q) “Excluded
Securities” means (i) any and all restricted stock units, shares of Common Stock or options to purchase Common Stock issued
to directors, officers, employees and consultants of the Company for services rendered to the Company in their capacity as such pursuant
to an Approved Stock Plan (as defined above); (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities
(other than restricted stock units and standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered
by clause (i) above) issued prior to the Subscription Date, provided that the conversion price of any such Convertible Securities (other
than restricted stock units and standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered
by clause (i) above) is not lowered, none of such Convertible Securities (other than restricted stock units and standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares
issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted stock units and standard
options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially
changed in any manner that adversely affects any of the Buyers; and (iii) the shares of Common Stock issuable upon exercise of the SPA
Warrants; provided, that the terms of the SPA Warrant are not amended, modified or changed on or after the Subscription Date (other than
antidilution adjustments pursuant to the terms thereof in effect as of the Subscription Date).
(r)
“Expiration Date” means the date that is the fifth (5th)
anniversary of the Exercise Date or, if such date falls on a day other than a Trading Day or on which trading does not take place on
the Principal Market (a “Holiday”), the next date that is not a Holiday.
(s) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or
assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more
Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common
Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders
of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as
if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party
to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject
Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become
collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common
Stock, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually
or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding
shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z)
such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common
Stock, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related
transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner”
(as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance,
tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever,
of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50%
of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of
the date of this Warrant calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a
percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities
of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other
shareholders of the Company to surrender their shares of Common Stock without approval of the shareholders of the Company or (C) directly
or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering
into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in
which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this
definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent
with the intended treatment of such instrument or transaction.
(t) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(u) “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(v) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or
equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the
Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(w) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(x) “Principal
Market” means the Nasdaq Capital Market.
(y) “Registration
Rights Agreement” means that certain registration rights agreement, dated as of the Closing Date, by and among the Company
and the holders of this Common Stock Purchase Warrant.
(aa) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(bb) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(cc) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(dd) “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any
day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for
the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that
“Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less
than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market
(or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the
hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y)
with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The
New York Stock Exchange (or any successor thereto) is open for trading of securities.
(ee) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board
for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg,
or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest
closing bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security
on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined
by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such
dispute shall be resolved in accordance with the procedures in Section 15. All such determinations shall be appropriately adjusted for
any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
[signature page follows]
IN WITNESS
WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.
ACLARION, INC.
By: ___________________________
Name:
Title:
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO
EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
ACLARION, INC.
The undersigned
holder hereby elects to exercise the Warrant to Purchase Common Stock No. _______ (the “Warrant”) of Aclarion, Inc.,
a Delaware corporation (the “Company”) as specified below. Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the Aggregate Exercise Price shall be made as:
[_] a “Cash
Exercise” with respect to _________________ Warrant Shares; and/or
[_] a “Cashless
Exercise” with respect to _______________ Warrant Shares.
In the event
that the Holder has elected a Cashless Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder
hereby represents and warrants that (i) this Exercise Notice was executed by the Holder at __________ [a.m.][p.m.] on the date set forth
below and (ii) if applicable, the Bid Price as of such time of
execution of this Exercise Notice was $________.
2. Payment
of Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to
be issued pursuant hereto, the Holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance
with the terms of the Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ shares of Common
Stock in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:
[_] Check
here if requesting delivery as a certificate to the following name and to the following address:
[_] Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
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DTC Participant: |
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DTC Number: |
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Account Number: |
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Date: _____________ __,
____________________
Name of Registered Holder
By: _________________________
Name:
Title:
Tax ID:____________________________
Facsimile:__________________________
E-mail Address:_____________________
EXHIBIT B
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs ______________ to issue the above indicated number of shares of Common
Stock in accordance with the Transfer Agent Instructions dated _________, 202_, from the Company and acknowledged and agreed to by _______________.
ACLARION, INC.
By: ___________________________
Name:
Title:
Exhibit 10.2
Warrant PURCHASE
AGREEMENT
This Warrant Purchase Agreement
(this “Agreement”) is dated as of August 27, 2024, between Aclarion, Inc., a Delaware corporation (the “Company”),
and the purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”)
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally
and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE
I– The Securities
Section 1.1.
Sale and Purchase of Warrants to Purchase Common Stock (the “Warrants”). In reliance upon the representations
and warranties made herein, the Company agrees to sell Warrants (attached hereto as Exhibit 1) to the Purchaser, and Purchaser agrees
to purchase the Warrants from Company.
Section 1.2.
Purchase Price. The aggregate purchase price for the Securities (the “Purchase Price”), shall be as set
forth on the Signature Page.
ARTICLE
II– Representations and warranties of Company
Company represents and warrants
to Purchaser as follows:
Section 2.1.
Power and Authority of Company. The Company has all requisite power and authority to execute, deliver and perform this Agreement
and to execute and deliver the share certificates or instruments to be executed and delivered pursuant hereto by Company and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed, and delivered by Company and constitutes
the valid and binding obligation of Company, enforceable against Company in accordance with its terms, except to the extent that such
enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to creditors'
rights generally, and (ii) is subject to general principles of equity.
Section 2.2.
Absence of Conflicting Agreements. The execution, delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby do not, with or without the giving of notice, the lapse of time, or both: (i) contravene or conflict
with, or constitute a violation of, any judgment, injunction, order, or decree binding upon or applicable to Company, (ii) require any
consent, approval, or other action by any third party, (iii) contravene or conflict with, or constitute a violation of, any agreement
to which Company is a party or by which Company is bound, or (iv) result in the creation or imposition of any Lien on the Securities.
ARTICLE
III– representations and warranties of Purchaser
Purchaser represents and warrants
to, and agrees with, Company as follows:
Section 3.1.
Accredited Investor and Investment Purpose. Purchaser is an "accredited investor" as that term is defined in Rule
501(a) of the Securities Act. The Securities will be acquired for investment for Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and Purchaser has no present intention
of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act.
ARTICLE
IV-- miscellaneous
Section 4.1.
Registration Statement. Upon Purchaser demand, the Company shall file a registration statement on Form S-3 (or other appropriate
form if the Company is not then S-3 eligible) within 30 days providing for the resale by the Purchasers of the Warrant Shares issued and
issuable upon exercise of the Warrants. The Company shall use commercially reasonable efforts to cause such registration statement to
become effective within 30 days following the filing of the registration statement and to keep such registration statement effective at
all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof.
Section 4.2.
Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly within such jurisdiction.
Section 4.3.
Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. No party hereto may assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of each of the other parties hereto.
Section 4.4.
No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the
parties hereto and their respective successors and permitted assigns.
Section 4.5.
Amendment; Waivers; Etc. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid
or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge
or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other respect or at any other time.
Section 4.6.
Counterparts; Facsimile. This Agreement may be executed in several counterparts, each of which shall be deemed an original
and all of which shall together constitute one and the same instrument. The reproduction of signatures by means of telecopying or electronic
device shall be treated as though such reproductions are executed originals.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first written above.
PURCHASER:
Number of Warrants Purchased:
Purchase Price: $0.00001
Name of Investor:
Signature of Investor: ___________________
Investor’s SS# or Tax ID#:
COMPANY: ACLARION, INC.
Signature of Authorized Signatory: __________________________________
Name of Authorized Signatory: John Lorbiecki,
Chief Financial Officer
Date: August ____, 2024.
By: ____________________
Name: __________________
Title: ___________________
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Aclarion (NASDAQ:ACON)
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Aclarion (NASDAQ:ACON)
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부터 10월(10) 2023 으로 10월(10) 2024