0001826667
false
0001826667
2023-10-02
2023-10-02
0001826667
us-gaap:CommonStockMember
2023-10-02
2023-10-02
0001826667
us-gaap:WarrantMember
2023-10-02
2023-10-02
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
October 2, 2023
TRISALUS
LIFE SCIENCES, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-39813 |
|
85-3009869 |
(State or Other Jurisdiction of
Incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification
No.) |
|
6272
W. 91st Ave., Westminster,
Colorado |
|
80031 |
(Address of principal executive offices) |
|
(Zip Code) |
|
|
|
(888)
321-5212
(Registrant’s telephone number, including
area code)
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 obligations 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:
Title
of each class |
|
Trading
symbol(s) |
|
Name of each exchange
on which registered |
Common
Stock, $0.0001 par value per share |
|
TLSI |
|
Nasdaq
Global Market |
Warrants,
each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share |
|
TLSIW |
|
Nasdaq
Global 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 x
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. |
On October 2, 2023, TriSalus Life Sciences,
Inc. (the “Company”) entered into a Standby Equity Purchase Agreement (the “Purchase Agreement”) with YA II PN,
Ltd. (“Yorkville”). Yorkville is a fund managed by Yorkville Advisors Global, LP, headquartered in Mountainside, New Jersey.
Pursuant to the Purchase Agreement, the Company
shall have the right, but not the obligation, to sell to Yorkville up to $30,000,000 of common stock, par value $0.0001 per share of the
Company (the “Common Stock”), at the Company’s request any time during the commitment period commencing on October 2, 2023 (the “Effective Date”) and terminating on the first day of the month following the 24-month anniversary of the Effective
Date. Each issuance and sale by the Company to Yorkville under the Purchase Agreement (an “Advance”) is subject to a maximum
limit equal to the greater of: (i) an amount equal to 100% of the average of the daily volume traded of the Company’s Common Stock
on the Nasdaq Stock Market (“Nasdaq”) for the 10 trading days immediately preceding an Advance notice, or (ii) 1,000,000 shares
of Common Stock.
The shares will be issued and sold to Yorkville
at a per share price equal to, at the election of the Company as specified in the relevant Advance notice: (i) 96% of the Market Price
(as defined below) for any period commencing on the receipt of the Advance notice by Yorkville and ending on 4:00 p.m. New York City time
on the applicable Advance notice date (the “Option 1 Pricing Period”), and (ii) 97% of the Market Price for any three consecutive
trading days commencing on the Advance notice date (the “Option 2 Pricing Period,” and each of the Option 1 Pricing Period
and the Option 2 Pricing Period, a “Pricing Period”). “Market Price” is defined as, for any Option 1 Pricing Period,
the daily volume weighted average price (“VWAP”) of the Common Stock on Nasdaq, and for any Option 2 Pricing Period, the lowest
VWAP of the Common Stock on the Nasdaq during the Option 2 Pricing Period. The Advances are subject to certain limitations, including
that Yorkville cannot purchase any shares that would result in it beneficially owning more than 4.99% of the Company’s outstanding
Common Stock at the time of an Advance (the “Ownership Limitation”) or acquiring since the Effective Date under the Purchase
Agreement more than 19.99% of the Company’s outstanding Common Stock, as of the date of the Purchase Agreement (the “Exchange
Cap”). The Exchange Cap will not apply under certain circumstances, including, where the Company has obtained stockholder approval
to issue in excess of the Exchange Cap in accordance with the rules of Nasdaq or such issuances do not require stockholder approval under
Nasdaq’s “minimum price rule.” Additionally, if the total number of shares of Common Stock traded on Nasdaq during the
applicable Pricing Period is less than the Volume Threshold (as defined below), then the number of shares of Common Stock issued and sold
pursuant to such Advance notice will be reduced to the greater of (a) 30% of the trading volume of the Common Stock on Nasdaq during the
relevant Pricing Period as reported by Bloomberg L.P., (b) the number of shares of Common Stock sold by Yorkville during such Pricing
Period, or (c) 100,000 shares of Common Stock, but in each case not to exceed the amount requested in the Advance notice. “Volume
Threshold” is defined as a number of shares of Common Stock equal to the quotient of (a) the number of shares in the Advance notice
requested by the Company divided by (b) 0.30.
Pursuant to the Purchase Agreement, the Company
is required to register all shares which Yorkville may acquire. The Company agreed to file with the United States Securities and Exchange
Commission (the “SEC”) a Registration Statement (as defined in the Purchase Agreement) registering for resale all of the Common
Stock that are to be offered and sold to Yorkville pursuant to the Purchase Agreement. The Company is required to have a Registration
Statement declared effective by the SEC before it can sell any shares to Yorkville pursuant to the Purchase Agreement.
The Company has paid YA Global II SPV, LLC, a
subsidiary of Yorkville, a structuring fee in the amount of $25,000 and has paid Yorkville a commitment fee in the amount of $300,000.
The foregoing is a summary description of certain
terms of the Purchase Agreement. For a full description of all terms, please refer to the copy of the Purchase Agreement that is filed
herewith as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute
an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction
in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any
such state or other jurisdiction.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 is
hereby incorporated by reference into this Item 3.02.
In the Purchase Agreement, Yorkville represented
to the Company, among other things, that it is an institutional “accredited investor” as defined in Rule 501(a)(3) of Regulation
D under the Securities Act of 1933, as amended (the “Securities Act”). The securities referred to in this Current Report on
Form 8-K are being issued and sold by the Company to Yorkville in reliance upon the exemption from the registration requirements of the
Securities Act afforded by Section 4(a)(2) of the Securities Act.
The board of directors of the Company (the
“Board”) approved a warrant repurchase program, authorizing the Company to repurchase some or all of the Company’s
outstanding publicly-held warrants to purchase shares of its common stock. The warrants were originally issued in the initial public
offering of the Company’s predecessor entity, MedTech Acquisition Corporation. The Board authorized an aggregate expenditure
of up to $4 million for such repurchases. The repurchases may be made from time to time in open market or privately negotiated
transactions. The Company may adopt one or more purchase plans pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as
amended, in order to implement the warrant repurchase program. The warrant repurchase program does not obligate the Company to
purchase any warrants and may be terminated, increased or decreased by the Board in its discretion at any time.
Forward-Looking Statements
Certain statements in this Current Report on Form 8-K may be considered
forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including but not limited to statements
regarding statements regarding the amount of shares of common stock the Company may issue to Yorkville pursuant to the Purchase Agreement,
the amount of proceeds to be received by the Company from the sale of shares of common stock and related matters,
the Company's potential repurchases of warrants to purchase shares of its common stock and related implementation plans. Forward-looking
statements generally relate to future events and can be identified by terminology such as “may”, “could”, “plan”,
“expect”, “intend”, “will”, “anticipate”, “potential” or “continue”,
or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties,
and other factors which could cause actual results to differ materially from those expressed or implied by such forward looking statements.
These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by the Company and its management,
are inherently uncertain. Factors that may cause actual results to differ materially from current expectations include, but are not limited
to, the risks and uncertainties set forth or incorporated by reference in the sections entitled “Risk Factors” and “Cautionary
Note Regarding Forward-Looking Statements” in the Current Report on Form 8-K filed by the Company on August 16, 2023 and the Company's
future filings from time to time with the Securities and Exchange Commission. These filings identify and address other important risks
and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking
statements, and the Company assumes no obligation and does not intend to update or revise these forward-looking statements. The Company
does not give any assurance that it will achieve its expectations.
|
Item 9.01. |
Financial Statements and Exhibits. |
(d) 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.
|
TRISALUS LIFE SCIENCES, INC. |
|
|
|
|
|
|
By: |
/s/ Sean Murphy
|
|
|
Sean Murphy
|
|
|
Chief Financial Officer |
Dated: October 3, 2023
Exhibit 99.1
STANDBY EQUITY PURCHASE AGREEMENT
THIS STANDBY EQUITY PURCHASE
AGREEMENT (this “Agreement”) dated as of October 2, 2023 is made by and between YA II PN, LTD.,
a Cayman Islands exempt limited partnership (the “Investor”), and TRISALUS LIFE SCIENCES, INC., a company
incorporated under the laws of the State of Delaware (the “Company”).
WHEREAS, the parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the
Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $30,000,000 of the Company’s
shares of common stock, par value $0.0001 per share (the “Common Shares”);
WHEREAS, the Common
Shares are listed for trading on the Nasdaq Global Market under the symbol “TLSI;” and
WHEREAS, the offer
and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other
exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions
to be made hereunder.
NOW, THEREFORE,
the parties hereto agree as follows:
Article I. Certain Definitions
“Additional Shares”
shall have the meaning set forth in Section 2.01(d)(ii).
“Adjusted Advance
Amount” shall have the meaning set forth in Section 2.01(d)(i).
“Advance”
shall mean any issuance and sale of Advance Shares by the Company to the Investor pursuant to Article II hereof.
“Advance Date”
shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance.
“Advance Notice”
shall mean a written notice substantially in the form of Exhibit A attached hereto to the Investor executed by an officer of the
Company and setting forth the number of Advance Shares that the Company desires to issue and sell to the Investor and the applicable
Pricing Period.
“Advance Notice
Date” shall mean each date the Company is deemed to have delivered (in accordance with Section 2.01(b) of this Agreement)
an Advance Notice to the Investor, subject to the terms of this Agreement.
“Advance Shares”
shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to the terms of this Agreement.
“Affiliate”
shall have the meaning set forth in Section 3.09.
“Agreement”
shall have the meaning set forth in the preamble of this Agreement.
“Applicable Laws”
shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having
the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all
applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable
laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt
Practices Act of 1977, and (iii) any Sanctions laws.
“Average Price”
shall mean a price per Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (i) the aggregate
gross purchase price paid by the Investor for all Shares purchased pursuant to this Agreement, by (ii) the aggregate number of Shares
issued pursuant to this Agreement.
“Black Out Period”
shall have the meaning set forth in Section 6.02(a).
“Closing”
shall have the meaning set forth in Section 2.02.
“Commitment Amount”
shall mean $30,000,000 of Common Shares.
“Commitment Fee”
shall have the meaning set forth in Section 12.04.
“Commitment Shares”
shall have the meaning set forth in Section 12.04.
“Commitment Period”
shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement in accordance with
Section 10.01.
“Common Shares”
shall have the meaning set forth in the recitals of this Agreement.
“Company”
shall have the meaning set forth in the preamble of this Agreement.
“Company Indemnitees”
shall have the meaning set forth in Section 5.02.
“Condition Satisfaction
Date” shall have the meaning set forth in Section 7.01.
“Current Report”
shall have the meaning set forth in Section 6.12.
“Daily Traded Amount”
shall mean, for any Trading Day, the daily trading volume of the Company’s Common Shares on the Principal Market during regular
trading hours on such Trading Day as reported by Bloomberg L.P.
“Effective Date”
shall mean the date hereof.
“Environmental Laws”
shall have the meaning set forth in Section 4.13.
“Exchange Act”
shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall have the meaning set forth in Section 2.01(c)(iii).
“Excluded Day”
shall have the meaning set forth in Section 2.01(d)(i).
“GAAP”
shall have the meaning set forth in Section 4.06.
“Hazardous Materials”
shall have the meaning set forth in Section 4.13.
“Indemnified Liabilities”
shall have the meaning set forth in Section 5.01.
“Investor”
shall have the meaning set forth in the preamble of this Agreement.
“Investor Indemnitees”
shall have the meaning set forth in Section 5.01.
“Market Price”
shall mean the Option 1 Market Price or Option 2 Market Price, as applicable.
“Material Adverse
Effect” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material
adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material
adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under this Agreement.
“Material Outside
Event” shall have the meaning set forth in Section 6.08.
“Maximum Advance
Amount” in respect of each Advance Notice means the greater of: (i) an amount equal to 100% of the average of the Daily
Traded Amount for the 10 Trading Days immediately preceding the Advance Notice, or (ii) 1,000,000 Common Shares.
“Minimum Acceptable
Price” or “MAP” shall mean the minimum price notified by the Company to the Investor in each Advance Notice,
if applicable.
“OFAC”
shall have the meaning set forth in Section 4.30.
“Option 1 Market
Price” shall mean the VWAP of the Common Shares during the Option 1 Pricing Period.
“Option 2 Market
Price” shall mean the lowest daily VWAP of the Common Shares during the Option 2 Pricing Period.
“Option 1 Pricing
Period” shall mean the period on the applicable Advance Notice Date with respect to an Advance Notice selecting an Option 1
Pricing Period commencing (i) if submitted to Investor prior to 9:00 a.m. Eastern Time on a Trading Day, the open of trading
on such day or (ii) if submitted to Investor after 9:00 a.m. Eastern Time on a Trading Day, upon receipt by the Company of
written confirmation (which may be by e-mail) of acceptance of such Advance Notice by the Investor (or the open of regular trading hours,
if later), and which confirmation shall specify such commencement time, and, in either case, ending on 4:00 p.m. New York City time
on the applicable Advance Notice Date.
“Option 2 Pricing
Period” shall mean the three consecutive Trading Days commencing on the Advance Notice Date.
“Ownership Limitation”
shall have the meaning set forth in Section 2.01(c)(i).
“Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Plan of Distribution”
shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
“Pricing Period”
shall mean the Option 1 Pricing Period or Option 2 Pricing Period, as applicable.
“Principal Market”
shall mean the Nasdaq Stock Market; provided however, that in the event the Common Shares are ever listed or traded on the New York Stock
Exchange, or the NYSE American, then the “Principal Market” shall mean such other market or exchange on which the Common
Shares are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Common
Shares.
“Prospectus”
shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with
a Registration Statement.
“Prospectus Supplement”
shall mean any prospectus supplement to a Prospectus filed with the SEC from time to time pursuant to Rule 424(b) under the
Securities Act, including the documents incorporated by reference therein, including, without limitation, any prospectus supplement to
be filed in accordance with Section 6.01 hereof.
“Purchase Price”
shall mean the price per Advance Share obtained by multiplying the Market Price by (i) 96% in respect of an Advance Notice with
an Option 1 Pricing Period, and (ii) 97% in respect of an Advance Notice with an Option 2 Pricing Period.
“Registrable Securities”
shall mean (i) the Shares, and (ii) any securities issued or issuable with respect to any of the foregoing by way of exchange,
stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization
or otherwise.
“Registration Limitation”
shall have the meaning set forth in Section 2.01(c)(ii).
“Registration Statement”
shall mean a registration statement on Form S-1 or Form S-3 or on such other form promulgated by the SEC for which the Company
then qualifies and which counsel for the Company shall deem appropriate, and which form shall be available for the registration of the
resale by the Investor of the Registrable Securities under the Securities Act, which registration statement provides for the resale from
time to time of the Shares as provided herein.
“Regulation D”
shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions”
shall have the meaning set forth in Section 4.30.
“Sanctioned Countries”
shall have the meaning set forth in Section 4.30.
“SEC”
shall mean the U.S. Securities and Exchange Commission.
“SEC Documents”
shall have the meaning set forth in Section 4.05.
“Securities Act”
shall have the meaning set forth in the recitals of this Agreement.
“Settlement Document”
shall have the meaning set forth in Section 2.02(a).
“Shares”
shall mean the Commitment Shares (if applicable), and the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiaries”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds
a majority of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business,
operations or administration of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
“Trading Day”
shall mean any day during which the Principal Market shall be open for business.
“Transaction Documents”
shall have the meaning set forth in Section 4.02.
“Volume Threshold”
shall mean a number of Common Shares equal to the quotient of (i) the number of Advance Shares requested by the Company in an Advance
Notice divided by (ii) 0.30.
“VWAP” shall
mean, for a specified period, the volume weighted average price of the Common Shares on the Principal Market, for such period as reported
by Bloomberg L.P. through its “AQR” function.
Article II. Advances
Section 2.01 Advances;
Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, the Company, at its sole
discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall purchase from the
Company, Advance Shares by the delivery to the Investor of Advance Notices on the following terms:
| (a) | Advance Notice. At any time during
the Commitment Period the Company may require the Investor to purchase Shares by delivering
an Advance Notice to the Investor, subject to the satisfaction or waiver by the Investor
of the conditions set forth in Section 7.01, and in accordance with the following provisions: |
| (i) | The Company shall, in its sole discretion,
select the number of Advance Shares not to exceed the Maximum Advance Amount, it desires
to issue and sell to the Investor in each Advance Notice and the time it desires to deliver
each Advance Notice and the Pricing Period to be used. |
| (ii) | There shall be no mandatory minimum Advances
and no non-usages fee for not utilizing the Commitment Amount or any part thereof. |
| (b) | Date of Delivery of Advance Notice.
Advance Notices shall be delivered in accordance with the instructions set forth on the bottom
of Exhibit A attached hereto. An Advance Notice selecting an Option 1 Pricing
Period shall only be delivered on a Trading Day and shall be deemed delivered on the day
such notice is received by e-mail. An Advance Notice selecting an Option 2 Pricing Period
shall be deemed delivered on (i) the day it is received by the Investor if such notice
is received by e-mail at or before 9:00 a.m. New York City time (or at such later time
if agreed to by the Investor in its sole discretion) in accordance with the instructions
set forth on the bottom of Exhibit A attached hereto, or (ii) the immediately
succeeding day if it is received by e-mail after 9:00 a.m. New York City time. Upon
receipt of an Advance Notice, the Investor shall promptly (and, with respect to an Advance
Notice selecting an Option 1 Pricing Period, in no event more than one-half hour after receipt)
provide written confirmation (which may be by e-mail) of receipt of such Advance Notice,
and which confirmation, in the case of an Advance Notice selecting an Option 1 Pricing Period,
shall specify the commencement time of the Option 1 Pricing Period. |
| (c) | Advance Limitations. Regardless
of the number of Advance Shares requested by the Company in the Advance Notice, the final
number of Shares to be issued and sold pursuant to an Advance Notice shall be reduced (if
at all) in accordance with each of the following limitations: |
| (i) | Ownership Limitation; Commitment Amount.
At the request of the Company, the Investor shall inform the Company of the number of shares
the Investor beneficially owns. Notwithstanding anything to the contrary contained in this
Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase
or acquire, any Common Shares under this Agreement which, when aggregated with all other
Common Shares beneficially owned by the Investor and its Affiliates (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder),
would result in the beneficial ownership by the Investor and its Affiliates (on an aggregated
basis) to exceed 4.99% of the then outstanding voting power or number of Common Shares (the
“Ownership Limitation”). Upon the written request of the Investor, the
Company shall promptly (but no later than the next business day on which the transfer agent
for the Common Shares is open for business) confirm orally or in writing to the Investor
the number of Common Shares then outstanding. In connection with each Advance Notice delivered
by the Company, any portion of the Advance Shares that would (i) cause the Investor
to exceed the Ownership Limitation or (ii) cause the aggregate number of Shares issued
and sold to the Investor hereunder to exceed the Commitment Amount shall automatically be
withdrawn with no further action required by the Company, and such Advance Notice shall be
deemed automatically modified to reduce the number of Advance Shares requested by an amount
equal to such withdrawn portion; provided that in the event of any such automatic withdrawal
and automatic modification, the Investor will promptly notify the Company of such event. |
| (ii) | Registration Limitation. In no event
shall an Advance exceed the amount of Common Shares registered in respect of the transactions
contemplated hereby under the Registration Statement then in effect (the “Registration
Limitation”). In connection with each Advance Notice, any portion of an Advance
that would exceed the Registration Limitation shall automatically be withdrawn with no further
action required by the Company and such Advance Notice shall be deemed automatically modified
to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn
portion; provided that in the event of any such automatic withdrawal and automatic modification,
the Investor will promptly notify the Company of such event. |
| (iii) | Compliance with Rules of Principal
Market. Notwithstanding anything to the contrary herein, the Company shall not effect
any sales under this Agreement and the Investor shall not have the obligation to purchase
Common Shares under this Agreement to the extent (but only to the extent) that after giving
effect to such purchase and sale the aggregate number of Common Shares issued under this
Agreement would exceed 5,260,704 (representing 19.99% of the aggregate amount of Common
Shares issued and outstanding as of the date of this Agreement), calculated in accordance
with the rules of the Principal Market, which number shall be reduced, on a share-for-share
basis, by the number of Common Shares issued or issuable pursuant to any transaction or series
of transactions that may be aggregated with the transactions contemplated by this Agreement
under the applicable rules of the Principal Market (such maximum number of shares, the
“Exchange Cap”) provided that, the Exchange Cap will not apply
if (a) the Company’s stockholders have approved issuances in excess of the Exchange
Cap in accordance with the rules of the Principal Market, or (b) the Average Price
of all applicable sales of Common Shares hereunder (including any sales covered by an Advance
Notice that has been delivered prior to the determination of whether this clause (b) applies)
equals or exceed $5.12 per share (which represents the lower of (i) the
Nasdaq Official Closing Price (as reflected on Nasdaq.com) immediately preceding the Effective
Date; or (ii) the average Nasdaq Official Closing Price for the five Trading Days immediately
preceding the Effective Date). In connection with each Advance Notice, any portion
of an Advance that would exceed the Exchange Cap shall automatically be withdrawn with no
further action required by the Company and such Advance Notice shall be deemed automatically
modified to reduce the aggregate amount of the requested Advance by an amount equal to such
withdrawn portion in respect of each Advance Notice. |
| (iv) | Volume Threshold. In connection
with an Advance Notice electing an Option 1 Pricing Period, if the total number of Common
Shares traded on the Principal Market during the applicable Pricing Period is less than the
Volume Threshold, then the number of Advance Shares issued and sold pursuant to such Advance
Notice shall be reduced to the greater of (a) 30% of the trading volume of the Common
Shares on the Principal Market during such Pricing Period as reported by Bloomberg L.P.,
(b) the number of Common Shares sold by the Investor during such Pricing Period, or
(c) 100,000 Common Shares, but in each case not to exceed the amount requested in the
Advance Notice |
| (d) | Minimum Acceptable Price. |
| (i) | With respect to each Advance Notice selecting
an Option 2 Pricing Period, the Company may notify the Investor of the MAP with respect to
such Advance by indicating a MAP on such Advance Notice. If no MAP is specified in an Advance
Notice, then no MAP shall be in effect in connection with such Advance. Each Trading Day
during an Option 2 Pricing Period for which (A) with respect to each Advance Notice
with a MAP, the VWAP of the Common Shares is below the MAP in effect with respect to such
Advance Notice, or (B) there is no VWAP (each such day, an “Excluded Day”),
shall result in an automatic reduction to the number of Advance Shares set forth in such
Advance Notice by one-third (the resulting amount of each Advance being the “Adjusted
Advance Amount”), and each Excluded Day shall be excluded from the Option 2 Pricing
Period for purposes of determining the Market Price. |
| (ii) | The total Advance Shares in respect of
each Advance (after reductions have been made to arrive at the Adjusted Advance Amount, if
any) shall be automatically increased by such number of Common Shares (the “Additional
Shares”) equal to the number of Common Shares sold by the Investor on such Excluded
Day, if any, and the price paid per share for each Additional Share shall be equal to the
MAP in effect with respect to such Advance Notice multiplied by 97%, provided that this increase
shall not cause the total Advance Shares to exceed the amount set forth in the original Advance
Notice or any limitations set forth in Section 2.01(c). |
| (e) | Unconditional Contract. Notwithstanding
any other provision in this Agreement, the Company and the Investor acknowledge and agree
that upon the Investor’s receipt of a valid Advance Notice from the Company the parties
shall be deemed to have entered into an unconditional contract binding on both parties for
the purchase and sale of Advance Shares pursuant to such Advance Notice in accordance with
the terms of this Agreement and (i) subject to Applicable Laws and (ii) subject
to Section 3.08 and Section 6.18, the Investor may sell Common Shares during the
Pricing Period. |
Section 2.02 Closings.
The closing of each Advance and each sale and purchase of Advance Shares (each, a “Closing”) shall take place as soon
as practicable on or after each Advance Date in accordance with the procedures set forth below. The parties acknowledge that the Purchase
Price is not known at the time the Advance Notice is delivered (at which time the Investor is irrevocably bound) but shall be determined
on each Closing based on the daily prices of the Common Shares that are the inputs to the determination of the Purchase Price as set
forth further below. In connection with each Closing, the Company and the Investor shall fulfill each of its obligations as set forth
below:
| (a) | On each Advance Date, the Investor shall
deliver to the Company a written document, in substantially the form attached hereto as Exhibit B
(each a “Settlement Document”), setting forth the final number of Shares
to be purchased by the Investor (taking into account any adjustments pursuant to Section 2.01),
the Market Price, the Purchase Price, the aggregate proceeds to be paid by the Investor to
the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading
Days during the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting
service reasonably agreed to by the parties), in each case in accordance with the terms and
conditions of this Agreement. |
| (b) | Promptly after receipt of the Settlement
Document with respect to each Advance (and, in any event, not later than two Trading Days
after such receipt), the Company will, or will cause its transfer agent to, electronically
transfer such number of Advance Shares to be purchased by the Investor (as set forth in the
Settlement Document) by crediting the Investor’s account or its designee’s account
at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by
such other means of delivery as may be mutually agreed upon by the parties hereto, and transmit
notification to the Investor that such share transfer has been requested. Promptly upon receipt
of such notification, the Investor shall pay to the Company the aggregate purchase price
of the Shares (as set forth in the Settlement Document) in cash in immediately available
funds to an account designated by the Company in writing and transmit notification to the
Company that such funds transfer has been requested. No fractional shares shall be issued,
and any fractional amounts shall be rounded to the next higher whole number of shares. To
facilitate the transfer of the Common Shares by the Investor, the Common Shares will not
bear any restrictive legends so long as there is an effective Registration Statement covering
the resale of such Common Shares (it being understood and agreed by the Investor that notwithstanding
the lack of restrictive legends, the Investor may only sell such Common Shares pursuant to
the Plan of Distribution set forth in the Prospectus included in the Registration Statement
and otherwise in compliance with the requirements of the Securities Act (including any applicable
prospectus delivery requirements) or pursuant to an available exemption). |
| (c) | Notwithstanding Section 2.02(b),
the certificate(s) or book-entry statement(s) representing the Commitment Shares,
if applicable, issued prior to the date the Registration Statement is declared effective
by the SEC, shall bear a restrictive legend in substantially
the following form (and stop transfer instructions may be placed against transfer of the
Commitment Shares): |
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS,
UNLESS SOLD PURSUANT TO AN OPINION OF COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS.
| (d) | On or prior to the Advance Date, each
of the Company and the Investor shall deliver to the other all documents, instruments and
writings expressly required to be delivered by either of them pursuant to this Agreement
in order to implement and effect the transactions contemplated herein. |
| (e) | Notwithstanding anything to the contrary
in this Agreement, if on any day during the Pricing Period (i) the Company notifies
Investor that a Material Outside Event has occurred, or (ii) the Company notifies the
Investor of a Black Out Period, the parties agree that the pending Advance shall end and
the final number of Advance Shares to be purchased by the Investor at the Closing for such
Advance shall be equal to the number of Common Shares sold by the Investor during the applicable
Pricing Period prior to the notification from the Company of a Material Outside Event or
Black Out Period. |
Section 2.03 Hardship.
| (a) | In the event the Investor sells Common
Shares after receipt of an Advance Notice and the Company fails to perform its obligations
as mandated in Section 2.02, the Company agrees that in addition to and in no way limiting
the rights and obligations set forth in Article V hereto and in addition to any other
remedy to which the Investor is entitled at law or in equity, including, without limitation,
specific performance, it will hold the Investor harmless against any loss, claim, damage,
or expense (including reasonable legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company and acknowledges that irreparable damage may
occur in the event of any such default. It is accordingly agreed that the Investor shall
be entitled to an injunction or injunctions to prevent such breaches of this Agreement and
to specifically enforce (subject to Applicable Laws and the rules of the Principal Market),
without the posting of a bond or other security, the terms and provisions of this Agreement. |
| (b) | In the event the Company provides an
Advance Notice and the Investor fails to perform its obligations as mandated in Section 2.02,
the Investor agrees that in addition to and in no way limiting the rights and obligations
set forth in Article V hereto and in addition to any other remedy to which the Company
is entitled at law or in equity, including, without limitation, specific performance, it
will hold the Company harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default
by the Investor and acknowledges that irreparable damage may occur in the event of any such
default. It is accordingly agreed that the Company shall be entitled to an injunction or
injunctions to prevent such breaches of this Agreement and to specifically enforce (subject
to the Securities Act and other rules of the Principal Market), without the posting
of a bond or other security, the terms and provisions of this Agreement. |
Section 2.04 Completion
of Resale Pursuant to the Registration Statement. After the Investor has purchased the full Commitment Amount and has completed the
subsequent resale of the full Commitment Amount pursuant to the Registration Statement, Investor will notify the Company in writing
(which may be by e-mail) that all subsequent resales are completed and the Company will be under no further obligation to maintain the
effectiveness of the Registration Statement.
Article III. Representations and Warranties
of the Investor
The Investor represents and
warrants to the Company, as of the Effective Date, as of each Advance Notice Date and as of each Advance Date that:
Section 3.01 Organization
and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and
has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to purchase or acquire
Shares in accordance with the terms hereof. The decision to invest and the execution and delivery of this Agreement by the Investor,
the performance by the Investor of its obligations hereunder and the consummation by the Investor of the transactions contemplated hereby
have been duly authorized and require no other proceedings on the part of the Investor. The undersigned has the right, power and authority
to execute and deliver this Agreement and all other instruments on behalf of the Investor or its stockholders. This Agreement has been
duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company, will
constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section 3.02 Evaluation
of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the
merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and of protecting
its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the
Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 3.03 No
Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review this Agreement
and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. The Investor is relying
solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s representatives
or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Common Shares hereunder, the
transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose
all or a part of its investment.
Section 3.04 Investment
Purpose. The Investor is acquiring the Common Shares for its own account, for investment purposes and not with a view towards, or
for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the
registration requirements of the Securities Act; provided, however, that by making the representations herein, the Investor
does not agree, or make any representation or warranty, to hold any of the Shares for any minimum or other specific term and reserves
the right to dispose of the Shares at any time in accordance with, or pursuant to, a Registration Statement filed pursuant to this Agreement
or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly or
indirectly, with any Person to sell or distribute any of the Shares. The Investor acknowledges
that it will be disclosed as an “underwriter” and a “selling stockholder” in each Registration Statement and
in any prospectus contained therein to the extent required by applicable law and to the extent the prospectus is related to the resale
of Registrable Securities.
Section 3.05 Accredited
Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation
D.
Section 3.06 Reliance
on Exemptions. The Investor understands that the Shares are being offered and sold to it in reliance on specific exemptions from
the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth
and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire
the Shares.
Section 3.07 No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of an investment in the Shares nor
have such authorities passed upon or endorsed the merits of the offering of the Shares.
Section 3.08 Information.
The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and
operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and its
advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and have received
answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor or its advisors
(and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company has not made to the
Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the Company, its employees
or any third party other than the representations and warranties of the Company contained in this Agreement. The Investor understands
that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has considered
necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 3.09 Not
an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the Company or any “Affiliate” of the Company (as that
term is defined in Rule 405 promulgated under the Securities Act).
Section 3.10 No
Prior Short Sales. At no time prior to the date of this Agreement has the Investor, its sole
member, any of their respective officers, or any entity managed or controlled by the Investor or its sole member, engaged in or effected,
in any manner whatsoever, directly or indirectly, for its own principal account, any (i) “short sale” (as such term
is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Shares or (ii) hedging transaction, in either case
which establishes a net short position with respect to the Common Shares that remains in effect as of the date of this Agreement.
Section 3.11 General
Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its
or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Common Shares by the Investor.
Article IV. Representations and Warranties
of the Company
Except as set forth in the
SEC Documents, the Company represents and warrants to the Investor that, as of the Effective Date, each Advance Notice Date and each
Advance Date (other than representations and warranties which address matters only as of a certain
date, which shall be true and correct as written as of such certain date):
Section 4.01 Organization
and Qualification. Each of the Company and its Subsidiaries is an entity duly organized and validly existing under the laws of their
respective jurisdiction of organization, and has the requisite power and authority to own its properties and to carry on its business
as now being conducted. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing (to the extent
applicable) in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section 4.02 Authorization,
Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance with the terms hereof
and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) have
been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further consent or authorization
will be required by the Company, its board of directors or its stockholders. This Agreement and the other Transaction Documents to which
the Company is a party have been (or, when executed and delivered, will be) duly executed and delivered by the Company and, assuming
the execution and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and delivered, will be) the legal,
valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or other laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights
to indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents”
means, collectively, this Agreement and each of the other agreements and instruments entered into or delivered by any of the parties
hereto in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
Section 4.03 Authorization
of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased by the Investor
pursuant to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors of the Company
or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, duly and
validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or
other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights,
and will be registered pursuant to Section 12 of the Exchange Act. The Shares, when issued, will conform to the description thereof
set forth in or incorporated into the Prospectus.
Section 4.04 No
Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will not (i) result
in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with respect to
consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or
its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company
or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that
would not reasonably be expected to have a Material Adverse Effect.
Section 4.05 SEC
Documents; Financial Statements. The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25
under the Exchange Act), as applicable, all reports, schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the Exchange Act, including, without limitation, the Current Report, each Registration Statement, as the same may
be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto, and all information contained
in such filings and all documents and disclosures that have been or may in the future be incorporated by reference therein (all such
documents hereinafter referred to as the “SEC Documents”). The Company has delivered or made available to the Investor
through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, as applicable. Except as disclosed
in amendments or subsequent filings to the SEC Documents, as of its filing date (or, if amended or superseded by a filing prior to the
Effective Date, on the date of such amended or superseded filing), each SEC Documents complied in all material respects with the requirements
of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder applicable
to the SEC Documents, and did not contain any untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading.
Section 4.06 Financial
Statements. The consolidated financial statements of the Company included or incorporated by reference in the SEC Documents, together
with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and
Exchange Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied
on a consistent basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in
the case of unaudited interim financial statements, to the extent such financial statements may not include footnotes required by GAAP
or may be condensed or summary statements and (iii) such adjustments which are not material, either individually or in the aggregate)
during the periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated
by reference in the SEC Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or
incorporated by reference in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries
do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described
in the SEC Documents (excluding the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply
in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent
applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Documents
fairly presents the information called for in all material respects and has been prepared in accordance with the SEC’s rules and
guidelines applicable thereto.
Section 4.07 Registration
Statement and Prospectus. Each Registration Statement and the offer and sale of Shares as contemplated hereby, if and when filed,
will meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes,
regulations, contracts or other documents that are required to be described in a Registration Statement or a Prospectus, or any amendment
or supplement thereto, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration
Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were
filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor
and its counsel. The Company has not distributed and, prior to the later to occur of each Advance Date and completion of the distribution
of the Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration
Statement, the Prospectus contained therein and each prospectus supplement thereto.
Section 4.08 No
Misstatement or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the date of such
Prospectus or any amendment or supplement thereto, conformed and will conform in all material respects with the requirements of the Securities
Act. At each Advance Date, the Registration Statement, and the Prospectus (including any amendment or supplement thereto), as of such
date, will conform in all material respects with the requirements of the Securities Act. Each Registration Statement, when it became
or becomes effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. Each Prospectus did not, or will not, include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The documents incorporated by reference in a Prospectus or any Prospectus Supplement did
not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements
in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by the Investor
specifically for use in the preparation thereof.
Section 4.09 Conformity
with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement thereto, and the
documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto, when such documents
were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as
the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable.
Section 4.10 Equity
Capitalization. As of the Effective Date, the authorized capital of the Company consists of 410,000,000 shares of capital stock,
of which 400,000,000 shares are designated common stock, par value $0.0001 per share, and 5,984,998 shares are undesignated preferred
stock and 4,015,002 shares are designated Series A Convertible Preferred Stock. As of the Effective Date, the Company had 26,316,681
shares of common stock outstanding and 4,015,002 shares Series A Convertible Preferred Stock outstanding.
The Common Shares are registered
pursuant to Section 12(b) of the Exchange Act and are currently listed on a Principal Market under the trading symbol “TLSI.”
The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Shares under
the Exchange Act, delisting the Common Shares from the Principal Market, nor has the Company received any notification that the Commission
or the Principal Market is contemplating terminating such registration or listing. To the Company’s knowledge, it is in compliance
with all applicable listing requirements of the Principal Market in all material respects.
Section 4.11 Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except
as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by
the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge of
the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement that would cause a Material Adverse Effect; and,
except as would not cause a Material Adverse Effect, the Company is not aware of any facts or circumstances which might give rise to
any of the foregoing.
Section 4.12 Employee
Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company
or any of its Subsidiaries, has any such dispute been threatened in writing, in each case which is reasonably likely to cause a Material
Adverse Effect.
Section 4.13 Environmental
Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects
with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure
to comply with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and
(iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The
term “Environmental Laws” means all applicable federal, state and local laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section 4.14 Title.
Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple or leasehold title
to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest other than such as are not material to the business of the Company. Any real property and facilities held under lease by the
Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
Section 4.15 Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect.
Section 4.16 Regulatory
Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their respective
businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permits.
Section 4.17 Internal
Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences, and management is not aware of any material weaknesses that are not disclosed in the
SEC Documents as and when required.
Section 4.18 Absence
of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries,
wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 4.19 Subsidiaries.
The Company does not presently own or control, directly or indirectly, any interest in any other corporation, partnership, association
or other business entity.
Section 4.20 Tax
Status. Except as would not cause a Material Adverse Effect, each of the Company and its Subsidiaries (i) has timely made or
filed all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which
it is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set
aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. The Company has not received written notification of any unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such
claim where failure to pay would cause a Material Adverse Effect.
Section 4.21 Certain
Transactions. To knowledge of the Company, none of the officers or directors of the Company has either directly or indirectly any
interest in, or is a party to, any transaction that would be required to be disclosed as a related party transaction pursuant to Rule 404
of Regulation S-K promulgated under the Securities Act.
Section 4.22 Rights
of First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal basis to
any third parties including, but not limited to, current or former stockholders of the Company, underwriters, brokers, agents or other
third parties.
Section 4.23 Dilution.
The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing stockholders and could
significantly increase the outstanding number of Common Shares.
Section 4.24 Acknowledgment
Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this
Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in
connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the
Shares hereunder. The Company is aware and acknowledges that it shall not be able to request Advances under this Agreement if a Registration
Statement is not effective or if any issuances of Common Shares pursuant to any Advances would violate any rules of the Principal
Market. The Company acknowledges and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement.
Section 4.25 Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated.
Section 4.26 Relationship
of the Parties. Neither the Company, nor any of its Subsidiaries, affiliates, nor any person acting on its or their behalf is a client
or customer of the Investor or any of its affiliates and neither the Investor nor, to the knowledge of the Company, any of its affiliates
has provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or
their behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section 4.27 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement or a Prospectus will be made or reaffirmed without a reasonable basis or will be
disclosed other than in good faith.
Section 4.28 Compliance
with Laws. The Company and each of its Subsidiaries are in compliance with Applicable Laws; the Company has not received a notice
of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s knowledge, any agent, Affiliate or other person acting on behalf of the Company or any
Subsidiary has, has not complied with Applicable Laws, or could give rise to a notice of non-compliance with Applicable Laws, and is
not aware of any pending change or contemplated change to any applicable law or regulation or governmental position; in each case that
would have a Material Adverse Effect.
Section 4.29 Sanctions
Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled
Affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that
is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset
Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other
relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked
Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”),
or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings
with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s
Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned
Countries”)). Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale
of Advance Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person
(a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that,
at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner
that will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions
contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company
nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither
the Company nor any of its Subsidiaries nor any director, officer or controlled Affiliate of the Company or any of its Subsidiaries,
has ever had funds blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Article V. Indemnification
The Investor and the Company
represent to the other the following with respect to itself:
Section 5.01 Indemnification
by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder,
and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and
hold harmless the Investor and its investment manager, Yorkville Advisors Global, LP, and each of their respective officers, directors,
managers, members, partners, employees and agents (including, without limitation, those retained in connection with the transactions
contemplated by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions,
causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection
therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the
Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any
amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor
specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty
made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any
material breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any
other certificate, instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company
may be unenforceable under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities, which is permissible under Applicable Law.
Section 5.02 Indemnification
by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the
Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company
and all of its officers, directors, stockholders, employees and agents (including, without limitation, those retained in connection with
the transactions contemplated by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against any
and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating to
(a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration
of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable for
written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the
documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically
for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor in this Agreement
or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant, agreement
or obligation of the Investor contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby
executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable Laws, the
Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible
under Applicable Laws.
Section 5.03 Notice
of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee,
as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this
Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying
party will not relieve it of liability under this Article V except to the extent the indemnifying party is prejudiced by such failure.
The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory to
the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee
or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of
not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee
and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or
Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee
shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying
party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee
which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised
as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement
of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor
Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release
from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article V shall be made by
periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment
therefor is due.
Section 5.04 Remedies.
The remedies provided for in this Article V are not exclusive and shall not limit any right or remedy which may be available to
any indemnified person at law or equity. The obligations of the parties to indemnify or make contribution under this Article V shall
survive expiration or termination of this Agreement.
Section 5.05 Limitation
of liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party for punitive, indirect, incidental
or consequential damages.
Article VI.
Covenants
The Company covenants with the Investor, and
the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party, during the
Commitment Period:
Section 6.01 Registration
Statement.
| (a) | Filing of a Registration Statement.
The Company shall prepare and file with the SEC a Registration Statement, or multiple Registration
Statements for the resale by the Investor of the Registrable Securities. The Company in its
sole discretion may choose when to file such Registration Statements; provided, however,
that the Company shall not have the ability to request any Advances until the effectiveness
of a Registration Statement. |
| (b) | Maintaining a Registration Statement.
The Company shall use commercially reasonable efforts to maintain the effectiveness of any
Registration Statement that has been declared effective at all times during the Commitment
Period, provided, however, that if the Company has received notification pursuant to Section 2.04
that the Investor has completed resales pursuant to the Registration Statement for the full
Commitment Amount, then the Company shall be under no further obligation to maintain the
effectiveness of the Registration Statement. Notwithstanding anything to the contrary contained
in this Agreement, the Company shall ensure that, when filed, each Registration Statement
(including, without limitation, all amendments and supplements thereto) and the prospectus
(including, without limitation, all amendments and supplements thereto) used in connection
with such Registration Statement shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein, or necessary to make the
statements therein (in the case of prospectuses, in the light of the circumstances in which
they were made) not misleading. During the Commitment Period, the Company shall notify the
Investor promptly if (i) the Registration Statement shall cease to be effective under
the Securities Act, (ii) the Common Shares shall cease to be authorized for listing
on the Principal Market, (iii) the Common Shares cease to be registered under Section 12(b) or
Section 12(g) of the Exchange Act or (iv) the Company fails to file in a timely
manner all reports and other documents required of it as a reporting company under the Exchange
Act. |
| (c) | Filing Procedures. The Company
shall (A) permit counsel to the Investor an opportunity to review and comment upon (i) each
Registration Statement at least three (3) Trading Days prior to its filing with the
SEC and (ii) all amendments and supplements to each Registration Statement (including,
without limitation, the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or
successor reports or Prospectus Supplements the contents of which is limited to that set
forth in such reports) within a reasonable number of days prior to their filing with the
SEC, and (B) shall reasonably consider any comments of the Investor and its counsel
on any such Registration Statement or amendment or supplement thereto or to any Prospectus
contained therein. The Company shall promptly furnish to the Investor, without charge, (i) electronic
copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives
relating to each Registration Statement (which correspondence shall be redacted to exclude
any material, non-public information regarding the Company or any of its Subsidiaries),
(ii) after the same is prepared and filed with the SEC, one (1) electronic copy
of each Registration Statement and any amendment(s) and supplement(s) thereto,
including, without limitation, financial statements and schedules, all documents incorporated
therein by reference, if requested by the Investor, and all exhibits and (iii) upon
the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus
included in such Registration Statement and all amendments and supplements thereto; provided,
however, the Company shall not be required to furnish any document to the extent such document
is available on EDGAR). |
| (d) | Amendments and Other Filings.
The Company shall use commercially reasonable efforts to (i) prepare and file with the
SEC such amendments (including post-effective amendments) and supplements to a Registration
Statement and the related prospectus used in connection with such Registration Statement,
which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities
Act, as may be necessary to keep such Registration Statement effective at all times during
the Commitment Period, and use commercially reasonable efforts to prepare and file with the
SEC such additional Registration Statements in order to register for resale under the Securities
Act all of the Registrable Securities; (ii) cause the related prospectus to be amended
or supplemented by any required prospectus supplement (subject to the terms of this Agreement),
and as so supplemented or amended to be filed pursuant to Rule 424 promulgated under
the Securities Act; (iii) provide the Investor copies of all correspondence from and
to the SEC relating to a Registration Statement (provided that the Company may excise any
information contained therein which would constitute material non-public information), and
(iv) comply with the provisions of the Securities Act with respect to the Registration
Statement. In the case of amendments and supplements to a Registration Statement which are
required to be filed pursuant to this Agreement (including pursuant to this Section 6.01(d))
by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K
or any analogous report under the Exchange Act, the Company shall file such report in a prospectus
supplement filed pursuant to Rule 424 promulgated under the Securities Act to incorporate
such filing into the Registration Statement, if applicable, or shall file such amendments
or supplements with the SEC either on the day on which the Exchange Act report is filed which
created the requirement for the Company to amend or supplement the Registration Statement,
if feasible, or otherwise promptly thereafter. |
| (e) | Blue-Sky. The Company
shall use its commercially reasonable efforts to, if required by Applicable Laws, (i) register
and qualify the Common Shares covered by a Registration Statement under such other securities
or “blue sky” laws of such jurisdictions in the United States as the Investor
reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including
post-effective amendments) and supplements to such registrations and qualifications as may
be necessary to maintain the effectiveness thereof during the Commitment Period, (iii) take
such other actions as may be necessary to maintain such registrations and qualifications
in effect at all times during the Commitment Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Common Shares for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection therewith or as a
condition thereto to (w) make any change to its Certificate of Incorporation or Bylaws
or any other organizational documents of the Company or any of its Subsidiaries, (x) qualify
to do business in any jurisdiction where it would not otherwise be required to qualify but
for this Section 6.01(e), (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction. The Company
shall promptly notify the Investor of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any of the Common Shares
for sale under the securities or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threat of any proceeding for
such purpose. |
Section 6.02 Suspension
of Registration Statement.
| (a) | Establishment of a Black Out Period.
During the Commitment Period, the Company from time to time may suspend the use of the Registration
Statement by written notice to the Investor in the event that the Company determines in its
sole discretion in good faith that such suspension is necessary to (A) delay the disclosure
of material nonpublic information concerning the Company, the disclosure of which at the
time is not, in the good faith opinion of the Company, in the best interest of the Company,
provided at least two Trading Days have elapsed since the last Advance Date, or (B) amend
or supplement the Registration Statement or Prospectus so that such Registration Statement
or Prospectus shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (a “Black
Out Period”). |
| (b) | No Sales by Investor During the Black
Out Period. During such Black Out Period, the Investor agrees not to sell any Common
Shares of the Company. |
| (c) | Limitations
on the Black Out Period. The Company shall not impose any Black Out Period that is longer
than 45 days or in a manner that is more restrictive (including, without limitation, as to
duration) than the comparable restrictions that the Company may impose on transfers of the
Company’s equity securities by its directors and senior executive officers. In addition,
the Company shall not deliver any Advance Notice during any Black Out Period. If the public
announcement of such material, nonpublic information is made during a Black Out Period, the
Black Out Period shall terminate immediately after such announcement, and the Company shall
immediately notify the Investor of the termination of the Black Out Period. |
Section 6.03 Listing
of Common Shares. As of each Advance Date, the Shares to be sold by the Company from time to time hereunder will have been registered
under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official notice of issuance.
Section 6.04 Opinion
of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have received an opinion
letter from counsel to the Company in form and substance reasonably satisfactory to the Investor.
Section 6.05 Exchange
Act Registration. The Company will use commercially reasonable efforts to file in a timely manner all reports and other documents
required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether or not permitted
by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section 6.06 Transfer
Agent Instructions. During the Commitment Period (or such shorter time as permitted by Section 2.04 of this Agreement) and subject
to Applicable Laws, the Company shall cause (including, if necessary, by causing legal counsel for the Company to deliver an opinion)
the transfer agent for the Common Shares to remove restrictive legends from Common Shares purchased by the Investor pursuant to this
Agreement, provided that counsel for the Company shall have been furnished with such documents as they may require for the purpose of
enabling them to render the opinions or make the statements requested by the transfer agent, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the covenants, obligations or conditions, contained herein.
Section 6.07 Corporate
Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence of the Company during
the Commitment Period.
Section 6.08 Notice
of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify the Investor,
and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration Statement
or related Prospectus (in each of which cases the information provided to Investor will be kept strictly confidential): (i) except
for requests made in connection with SEC investigations disclosed in the SEC Documents, receipt of any request for additional information
by the SEC or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement or any
request for amendments or supplements to the Registration Statement or related Prospectus; (ii) the issuance by the SEC or any other
Federal governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Common Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for
such purpose; (iv) the happening of any event that makes any statement made in the Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making
of any changes in the Registration Statement, related Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the related Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or of the necessity to amend the Registration Statement or supplement
a related Prospectus to comply with the Securities Act or any other law (and the Company will promptly make available to the Investor
any such supplement or amendment to the related Prospectus, provided, however, the Company shall not be required to furnish any document
to the extent such document is available on EDGAR); (v) the Company’s reasonable determination that a post-effective amendment
to the Registration Statement would be required under Applicable Law; (vi) the Common Shares shall cease to be authorized for listing
on the Principal Market; or (vii) the Company fails to file in a timely manner all reports and other documents required of it as
a reporting company under the Exchange Act. The Company shall not deliver to the Investor any Advance Notice, and the Company shall not
sell any Shares pursuant to any pending Advance Notice (other than as required pursuant to Section 2.02(e)), during the continuation
of any of the foregoing events (each of the events described in the immediately preceding clauses (i) through (vii), inclusive,
a “Material Outside Event”).
Section 6.09 Consolidation.
If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation of the Company with or into,
or a transfer of all or substantially all the assets of the Company to another entity before the transaction contemplated in such Advance
Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance have been received
by the Investor.
Section 6.10 Issuance
of the Company’s Common Shares. The issuance and sale of the Common Shares hereunder shall be made in accordance with the provisions
and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities law.
Section 6.11 Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses
incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing and filing
of the Registration Statement and each amendment and supplement thereto, of each prospectus and of each amendment and supplement thereto;
(ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements
of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of Investor’s
counsel, accountants and other advisors), (iv) the qualification of the Shares under securities laws in accordance with the provisions
of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any prospectus and
any amendments or supplements thereto requested by the Investor, (vi) the fees and expenses incurred in connection with the listing
or qualification of the Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section 6.12 Current
Report. The Company shall, not later than 5:30 p.m., New York City time, on the fourth business day after the date of this Agreement,
file with the SEC a current report on Form 8-K disclosing the execution of this Agreement by the Company and the Investor (including
any exhibits thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel a reasonable
opportunity to comment on any description of this Agreement contained in a draft of the Current Report, including any exhibit to be filed
related thereto, as applicable, prior to filing the Current Report with the SEC and shall give due consideration to all such comments.
From and after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material, non-public information
delivered to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees, agents or representatives (if any) in connection with the transactions contemplated by the
Transaction Documents. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide the Investor with any material, non-public information regarding the Company
or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in the Investor’s
sole discretion); it being understood that the mere notification of Investor required pursuant to Section 6.02(a) and clause
(iv) of Section 6.08 shall not in and of itself be deemed to be material, non-public information. Notwithstanding anything
contained in this Agreement to the contrary, the Company expressly agrees that it shall publicly disclose in the Current Report or otherwise
make publicly available any information communicated to the Investor by or, to the knowledge of the Company, on behalf of the Company
in connection with the transactions contemplated herein, which, following the Effective Date would, if not so disclosed, constitute material,
non-public information regarding the Company or its Subsidiaries. The Company understands and confirms that the Investor will rely on
the foregoing representations in effecting resales of Shares under a Registration Statement. In addition, effective upon the filing of
the Current Report, the Company acknowledges and agrees that any and all confidentiality or similar obligations with respect to the transactions
contemplated by the Transaction Documents under any agreement, whether written or oral, between the Company, any of its Subsidiaries
or any of their respective officers, directors, Affiliates, employees or agents, on the one hand, and Investor or any of its respective
officers, directors, Affiliates, employees or agents, on the other hand, shall terminate.
Section 6.13 Advance
Notice Limitation. The Company shall not deliver an Advance Notice if a stockholder meeting or corporate action relating to a stock
split, stock consolidation, or dividend, or the record date for any stockholder meeting or applicable corporate action, would fall during
the period beginning two Trading Days prior to the date of delivery of such Advance Notice and ending two Trading Days following the
Closing of such Advance.
Section 6.14 Use
of Proceeds. The proceeds from the sale of the Shares by the Company to Investor shall be used by the Company in the manner as will
be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement
thereto filed pursuant to this Agreement.
Section 6.15 Compliance
with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 6.16 Market
Activities. Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling persons will,
directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected
to constitute or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of Common Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation for
soliciting purchases of the Shares.
Section 6.17 Trading
Information. The Investor agrees to provide the Company with trading reports setting forth the number and average sales prices of
shares of Common Stock sold by the Investor during the prior trading week.
Section 6.18 Selling
Restrictions. (i) Except as expressly set forth below, the Investor covenants that from and after the Effective Date through
and including the Trading Day next following the expiration or termination of this Agreement as provided in Section 10.01 (the “Restricted
Period”), none of the Investor any of its officers, or any entity managed or controlled by the Investor (collectively, the
“Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”)
shall, directly or indirectly, engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of
the Exchange Act) of the Common Shares, either for its own principal account or for the principal account of any other Restricted Person.
Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the
contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long”
(as defined under Rule 200 promulgated under Regulation SHO) the Shares; or (2) selling a number of Common Shares equal to
the number of Advance Shares that such Restricted Person is unconditionally obligated to purchase under a pending Advance Notice but
has not yet received from the Company or the transfer agent pursuant to this Agreement.
Section 6.19 Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
No party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of
its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the
transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported
assignor’s due performance of its obligations hereunder, without the prior written consent of the other party and any such purported
assignment in contravention of the provisions herein shall be null and void and of no force or effect. Without the consent of the Investor,
the Company shall not have the right to assign or transfer any of its rights, or provide any third party the right to bind or obligate
the Company, to deliver Advance Notices or effect Advances hereunder.
Article VII.
Conditions for Delivery of Advance Notice
Section 7.01 Conditions
Precedent to the Right of the Company to Deliver an Advance Notice. The right of the Company to deliver an Advance Notice and the
obligations of the Investor hereunder with respect to an Advance are subject to the satisfaction or waiver, on each Advance Notice Date
(a “Condition Satisfaction Date”), of each of the following conditions:
| (a) | Accuracy of the Company’s Representations
and Warranties. The representations and warranties of the Company in this Agreement shall
be true and correct in all material respects as of the Advance Notice Date (other than representations
and warranties which address matters only as of a certain date, which shall be true and correct
as written as of such certain date). |
| (b) | Payment of Commitment Fee. The
Company shall have paid the Commitment Fee either in cash or by issuance of the Commitment
Shares to an account designated by the Investor, as applicable and in accordance with Section 12.04,
all of which Commitment Fee shall be fully earned and non-refundable, regardless of whether
any Advance Notices are made or settled hereunder or any subsequent termination of this Agreement. |
| (c) | Registration of the Common Shares
with the SEC. There is an effective Registration Statement pursuant to which the Investor
is permitted to utilize the prospectus thereunder to resell all of the Common Shares issuable
pursuant to such Advance Notice. The Company shall have filed with the SEC in a timely manner
all reports, notices and other documents required under the Exchange Act and applicable SEC
regulations during the twelve-month period immediately preceding the applicable Condition
Satisfaction Date. |
| (d) | Authority. The Company shall
have obtained all permits and qualifications required by any applicable state for the offer
and sale of all the Common Shares issuable pursuant to such Advance Notice, or shall have
the availability of exemptions therefrom. The sale and issuance of such Common Shares shall
be legally permitted by all laws and regulations to which the Company is subject. |
| (e) | No Material Outside Event. No
Material Outside Event shall have occurred and be continuing. |
| (f) | Board. The board of directors
of the Company, or any duly authorized committee thereof, has approved the transactions contemplated
by the Transaction Documents; said approval has not been amended, rescinded or modified and
remains in full force and effect as of the Effective Date, and a true, correct and complete
copy of such resolutions duly adopted by the board of directors of the Company, or any duly
authorized committee thereof, shall have been provided to the Investor. |
| (g) | Performance by the Company. The
Company shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior the applicable Condition Satisfaction Date. |
| (h) | No Injunction. No statute, rule,
regulation, executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent jurisdiction
that prohibits or directly, materially and adversely affects any of the transactions contemplated
by this Agreement. |
| (i) | No Suspension of Trading in or Delisting
of Common Shares. Trading in the Common Shares shall not have been suspended by the SEC,
the Principal Market or FINRA, the Company shall not have received any final and non-appealable
notice that the listing or quotation of the Common Shares on the Principal Market shall be
terminated on a date certain (unless, prior to such date certain, the Common Shares are listed
or quoted on any subsequent Principal Market), nor shall there have been imposed any suspension
of, or restriction on, accepting additional deposits of the Common Shares, electronic trading
or book-entry services by DTC with respect to the Common Shares that is continuing, the Company
shall not have received any notice from DTC to the effect that a suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry
services by DTC with respect to the Common Shares is being imposed or is contemplated (unless,
prior to such suspension or restriction, DTC shall have notified the Company in writing that
DTC has determined not to impose any such suspension or restriction). |
| (j) | Authorized. There shall be a
sufficient number of authorized but unissued and otherwise unreserved Common Shares for the
issuance of all of the Shares issuable pursuant to such Advance Notice. |
| (k) | Executed Advance Notice. The
representations contained in the applicable Advance Notice shall be true and correct in all
material respects as of the applicable Condition Satisfaction Date. |
| (l) | Consecutive Advance Notices.
Except with respect to the first Advance Notice, the Company shall have delivered all Shares
relating to all prior Advances. |
Article VIII.
Non Exclusive Agreement
Notwithstanding anything
contained herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time
throughout the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities
and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted
into or replaced by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures,
and/or grant any rights with respect to its existing and/or future share capital.
Article IX.
Choice of Law/Jurisdiction
This Agreement, and any and
all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement or the transactions contemplated
herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed, governed and
enforced under and solely in accordance with the substantive and procedural laws of the State of New York, in each case as in effect
from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly within the State of
New York. The Parties further agree that any action between them shall be heard in New York County, New York, and expressly consent to
the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United States District Court
of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this
Agreement.
EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article X. Termination
Section 10.01 Termination.
| (a) | Unless earlier terminated as provided
hereunder, this Agreement shall terminate automatically on the earliest of (i) the first
day of the month next following the 24-month anniversary of the Effective Date or (ii) the
date on which the Investor shall have made payment of Advances pursuant to this Agreement
for Common Shares equal to the Commitment Amount. |
| (b) | The Company may terminate this Agreement
effective upon five Trading Days’ prior written notice to the Investor; provided that
(i) there are no outstanding Advance Notices, the Common Shares under which have yet
to be issued, and (ii) the Company has paid all amounts owed to the Investor pursuant
to this Agreement. This Agreement may be terminated at any time by the mutual written consent
of the parties, effective as of the date of such mutual written consent unless otherwise
provided in such written consent. |
| (c) | Nothing in this Section 10.01 shall
be deemed to release the Company or the Investor from any liability for any breach under
this Agreement, or to impair the rights of the Company and the Investor to compel specific
performance by the other party of its obligations under this Agreement, in each case, with
respect to breaches or failures to preform occurring prior to the termination of this Agreement.
The indemnification provisions contained in Article V shall survive termination hereunder. |
Article XI. Notices
Other than with respect to
Advance Notices, which must be in writing delivered in accordance with Section 2.01(b) and will be deemed delivered on the
day set forth in Section 2.01(b), any notices, consents, waivers, or other communications required or permitted to be given under
the terms of this Agreement must be in writing and will be deemed to have been delivered (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by e-mail if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following
Trading Day; (iii) 5 days after being sent by U.S. certified mail, return receipt requested, (iv) 1 day after deposit with
a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses for
such communications (except for Advance Notices which shall be delivered in accordance with Exhibit A hereof) shall be:
If to the Company, to: |
TriSalus Life Sciences, Inc.
6272 W. 91st Ave,
Westminster, Colorado 80031 |
|
Attention: Chief Financial Officer |
|
Telephone: (888) 321-5212
Email: sean.murphy@trisaluslifesci.com
|
With a copy to (which shall not
constitute notice or delivery of process) to: |
Matt Browne
Cooley LLP
10265 Science Center Dr
San Diego, California 92121
Telephone: (858) 550-6045
Email: mbrowne@cooley.com |
If to the Investor(s): |
YA II PN, Ltd. |
|
1012 Springfield Avenue |
|
Mountainside, NJ 07092 |
|
Attention: Mark Angelo |
|
Portfolio Manager |
|
Telephone: (201) 985-8300 |
|
Email: mangelo@yorkvilleadvisors.com
|
|
|
With a Copy (which shall not
constitute notice or delivery of process) to: |
David Fine, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092 |
|
Telephone: (201) 985-8300 |
|
Email: legal@yorkvilleadvisors.com |
or at such other address and/or e-mail and/or
to the attention of such other person as the recipient party has specified by written notice given to each other party three business
days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent,
waiver or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date,
recipient email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of
personal service in accordance with clause (i), (ii) or (iv) above, respectively.
Article XII. Miscellaneous
Section 12.01 Counterparts.
This Agreement may be executed in identical counterparts, both which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically scanned
and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail attachment,
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
Section 12.02 Entire
Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their
respective Affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the
entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither
the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement.
Section 12.03 Reporting
Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or trading volume of the
Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The written
mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 12.04 Commitment
and Structuring Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby, except that the
Company has paid YA Global II SPV, LLC, a subsidiary of the Investor, a structuring fee in the amount of $25,000 and, and the Company
shall pay a commitment fee in an amount equal to 1.00% of the Commitment Amount (the “Commitment Fee”), at the Company’s
sole discretion, in cash payable on the Effective Date, or by the issuance to the Investor on the Effective Date of such number of Common
Shares that is equal to the Commitment Fee divided by the average of the daily VWAPs of the Common Shares during the three Trading Days
immediately prior to the Effective Date (the “Commitment Shares”).
Section 12.05 Brokerage.
Each of the parties hereto represents that it has had no dealings in connection with this transaction with any finder or broker who will
demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand, agree
to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming brokerage commissions
or finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with
this Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as
of the date first set forth above.
|
COMPANY: |
|
TriSalus
Life Sciences, Inc. |
|
|
|
By: |
/s/ Sean Murphy |
|
Name: |
Sean Murphy |
|
Title: |
Chief Financial Officer |
|
|
|
|
|
INVESTOR: |
|
YA
II PN, Ltd. |
|
|
|
By: |
Yorkville Advisors Global,
LP |
|
Its: |
Investment Manager |
|
|
|
|
|
By: |
Yorkville
Advisors Global II, LLC
|
|
|
Its: |
General Partner |
|
|
|
|
|
|
By: |
/s/ Matt Becker |
|
|
Name: |
Matt Becker |
|
|
Title: |
Member |
EXHIBIT A
ADVANCE NOTICE
TRISALUS LIFE SCIENCES, INC.
Dated: ______________ |
Advance
Notice Number: ______ |
The undersigned, _______________________,
hereby certifies, with respect to the sale of Common Shares of TRISALUS LIFE SCIENCES, INC.
(the “Company”) issuable in connection with this Advance Notice, delivered pursuant to that certain Standby Equity
Purchase Agreement, dated as of October 2, 2023 (the “Agreement”), as follows (with capitalized terms used herein without
definition having the same meanings as given to them in the Agreement):
1. The
undersigned is the duly elected ______________ of the Company.
2. There
are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective
amendment to the Registration Statement.
3. The
Company has performed in all material respects all covenants and agreements to be performed by the Company contained in the Agreement
on or prior to the Advance Notice Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.
4. The
number of Advance Shares the Company is requesting is _____________________.
5. The
Pricing Period for this Advance shall be an [Option 1 Pricing Period]/[Option 2 Pricing Period].
6. (For
an Option 1 Pricing Period Add:) The Volume Threshold for this Advance shall be _________]. (For an Option 2 Pricing Period Add:) The
Minimum Acceptable Price with respect to this Advance Notice is____________ (if left blank then no Minimum Acceptable Price will be applicable
to this Advance).
7. The
number of Common Shares of the Company outstanding as of the date hereof is ___________.
The undersigned has executed
this Advance Notice as of the date first set forth above.
|
TRISALUS LIFE SCIENCES, INC. |
|
|
|
By: |
|
Please deliver this Advance Notice by email to:
Email: Trading@yorkvilleadvisors.com
Attention: Trading Department and Compliance
Officer
Confirmation Telephone Number: (201) 985-8300.
EXHIBIT B
FORM OF SETTLEMENT DOCUMENT
VIA EMAIL
TRISALUS LIFE SCIENCES, INC.
Attn:
Email:
|
Below
please find the settlement information with respect to the Advance Notice Date of: |
|
1. |
Number of Common
Shares requested in the Advance Notice |
|
1.b. |
Volume Threshold
(Number of Common Shares in (1) divided by 0.30 |
|
1.c. |
Number of Common
Shares traded during Pricing Period |
|
2. |
Minimum Acceptable
Price for this Advance (if any) |
|
3. |
Number of Excluded
Days (if any) |
|
4. |
Adjusted Advance
Amount (if applicable) (including pursuant to Volume Threshold adjustment)) |
|
5. |
Option [1] /
[2] Market Price |
|
6. |
Purchase Price
(Market Price x [97][96]%) per share |
|
7. |
Number of Advance
Shares due to the Investor |
|
8. |
Total Purchase
Price due to Company (row 6 x row 7) |
|
If there were any Excluded Days then add the following
9. |
Number
of Additional Shares to be issued to the Investor |
|
10. |
Additional amount
to be paid to the Company by the Investor (Additional Shares in row 9 x Minimum Acceptable Price x 97%) |
|
11. |
Total Amount
to be paid to the Company (Purchase Price in row 8 + additional amount in row 10) |
|
12. |
Total Advance
Shares to be issued to the Investor (Advance Shares due to the Investor in row 7 + Additional Shares in row 9) |
|
Please issue the number of Advance Shares due to the Investor to
the account of the Investor as follows:
Investor’s DTC participant
#:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
COUNTRY:
Contact person:
Number and/or email:
|
Sincerely, |
|
|
|
YA II PN, LTD. |
Agreed and approved By TRISALUS LIFE SCIENCES, INC.:
v3.23.3
Cover
|
Oct. 02, 2023 |
Document Information [Line Items] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Oct. 02, 2023
|
Entity File Number |
001-39813
|
Entity Registrant Name |
TRISALUS
LIFE SCIENCES, INC.
|
Entity Central Index Key |
0001826667
|
Entity Tax Identification Number |
85-3009869
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
6272
W. 91st Ave.
|
Entity Address, City or Town |
Westminster
|
Entity Address, State or Province |
CO
|
Entity Address, Postal Zip Code |
80031
|
City Area Code |
888
|
Local Phone Number |
321-5212
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Common Stock [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Common
Stock, $0.0001 par value per share
|
Trading Symbol |
TLSI
|
Security Exchange Name |
NASDAQ
|
Warrant [Member] |
|
Document Information [Line Items] |
|
Title of 12(b) Security |
Warrants,
each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share
|
Trading Symbol |
TLSIW
|
Security Exchange Name |
NASDAQ
|
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=us-gaap_CommonStockMember |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=us-gaap_WarrantMember |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
TriSalus Life Sciences (NASDAQ:TLSI)
Graphique Historique de l'Action
De Août 2024 à Sept 2024
TriSalus Life Sciences (NASDAQ:TLSI)
Graphique Historique de l'Action
De Sept 2023 à Sept 2024