Exhibit 10.4
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated as of June 17, 2020, by and among Ocuphire Pharma, Inc., a Delaware corporation, with headquarters located at 37000 Grand River Ave, Suite 120, Farmington Hills, MI 48335 (“Ocuphire”), Rexahn
Pharmaceuticals, Inc., a Delaware corporation, with headquarters located at 15245 Shady Grove Road, Suite 455, Rockville, MD 20850 (“Rexahn”), and the investors listed on the Schedule of Buyers attached
hereto (each, a “Buyer” and collectively, the “Buyers”).
WHEREAS:
A. Ocuphire, Rexahn and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act
of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.
B. Each Buyer wishes to purchase, and Ocuphire wishes to sell, upon the terms and conditions stated in this Agreement, (i) that aggregate number of shares of Ocuphire’s common stock,
$0.0001 par value per share (the “Ocuphire Common Stock”), set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers (which aggregate amount of Ocuphire Common Stock for all Buyers together
(the “Buyers’ Allocation Number”) shall equal a number of shares, to be determined on the Closing Date (as defined below), that is exchangeable on the terms described in the Draft Merger Agreement (as defined
below) for an aggregate of 15% of the estimated Parent Fully Diluted Number (as defined below), assuming solely for this purpose that all of the Exchange Shares (as defined below) estimated to be issued in exchange for Additional Common Shares (as
defined below) were not then outstanding, and shall collectively be referred to herein as the “Initial Common Shares”), and (ii) up to that aggregate number of shares of Ocuphire Common Stock set forth
opposite such Buyer’s name in column (4) of the Schedule of Buyers attached hereto (which aggregate amount for all Buyers shall equal the Buyers’ Allocation Number) (the “Additional Common Shares” and
together with the Initial Common Shares, the “Common Shares”), which shall be issued in escrow to The Bank of New York Mellon acting as escrow agent (the “Escrow Agent”)
in accordance with those certain escrow agreements by and among each Buyer, on the one hand, and Ocuphire, Rexahn and the Escrow Agent on the other hand, in the form attached hereto as Exhibit A (collectively, the “Securities Escrow Agreement”) and which shall be delivered from time to time to the Buyers pursuant to the terms and conditions set forth in this Agreement.
C. In addition, Rexahn hereby agrees to issue to each Buyer, following completion of the Merger (as defined below) upon the terms and conditions stated in this Agreement (i) warrants, in
the form attached hereto as Exhibit B-1 (the “Series A Warrants”), representing the right to acquire an initial amount of shares of Rexahn’s common stock, par value $0.0001 per share (the “Rexahn Common Stock”) equal to one-hundred (100%) percent of the quotient determined by dividing the Purchase Price (as defined below) paid by such Buyer on the Closing Date, by the Final Per Share Price (as
defined below) (such shares of Rexahn Common Stock issuable upon exercise of the Series A Warrants, collectively, the “Series A Warrant Shares”), and (ii) warrants, in the form attached hereto as Exhibit
B-2 (the “Series B Warrants” and, together with the Series A Warrants, the “Warrants”), representing the right to acquire that number of shares of Rexahn Common
Stock in accordance with its terms and conditions (such shares of Rexahn Common Stock issuable upon exercise of the Series B Warrants, collectively, the “Series B Warrant Shares” and, together with the Series
A Warrant Shares, the “Warrant Shares”).
D. Contemporaneously with the execution and delivery of this Agreement, the Buyers and Rexahn are executing and delivering a Registration Rights Agreement, in the form attached hereto as Exhibit
C (the “Registration Rights Agreement”), pursuant to which Rexahn has agreed to provide, following the closing of the Merger, certain registration rights with respect to the Registrable Securities (as
defined in the Registration Rights Agreement) under the 1933 Act and the rules and regulations promulgated thereunder, and applicable state securities laws.
E. The Common Shares (and, as applicable, the Exchange Shares issued in exchange therefor), the Warrants and the Warrant Shares collectively are referred to herein as the “Securities.”
F. The “Parent Fully Diluted Number” is equal to the “fully-diluted” post-Merger outstanding shares of Rexahn Common Stock, which figure (i) includes all shares of Rexahn Common Stock that
may be issued pursuant to in-the-money options, warrants or convertible securities, and (ii) with respect to Replacement Warrants (as defined in the Draft Merger Agreement) issued by Rexahn following the Subscription Date in exchange for existing
Parent Warrants (as defined in the Draft Merger Agreement) shall include (A) all shares of Rexahn Common Stock that are subject to each Replacement Warrant that is in-the-money as of the date of issuance of such Replacement Warrant and (B) 0.5
times the number of shares of Rexahn Common Stock that may be issued pursuant to such out-of-the-money Replacement Warrants that is out-of-the-money as of the date of issuance of such Replacement Warrant and (iii) excludes all other
out-of-the-money options, warrants or convertible securities of Rexahn; provided, however, for determining whether Replacement Warrants are in-the-money or out-of-the money such determination will be made based on the difference
between the exercise price of such Replacement Warrant as compared to the first Closing Sale Price (as defined in the Warrants) of a share of Rexahn Common Stock immediately following the issuance of such Replacement Warrant.
NOW, THEREFORE, Ocuphire, Rexahn and each Buyer hereby agree as follows:
1. PURCHASE AND SALE OF COMMON SHARES AND WARRANTS.
(a) Purchase of Initial Common Shares. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 7 and 8 below, (x) Ocuphire shall issue and sell to each
Buyer, and each Buyer severally, but not jointly, agrees to purchase from Ocuphire on the Closing Date, the number of Initial Common Shares as is set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers and (y) Ocuphire shall
issue in escrow in the name of the Escrow Agent a number of shares of Ocuphire Common Stock equal to the Buyers’ Allocation Number (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction
occurring after the date hereof) issuable as Additional Common Shares, in accordance with the terms hereof and the Securities Escrow Agreement (the “Closing”).
(b) Closing. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., New York City time, on a date mutually agreed to by
Ocuphire, Rexahn and each Buyer after notification of satisfaction (or waiver) of the conditions to the Closing set forth in Sections 7 and 8 below, and shall take place remotely by electronic transfer of Closing documentation, or at such other
date as the parties hereto agree.
(c) Issuance of Warrants and Delivery of Additional Common Shares.
(i) Obligation to Issue Warrants. On the Warrant Closing Date (as defined below), and for no additional consideration, Rexahn shall issue to each Buyer (x) Series A Warrants to
acquire an initial amount of shares of Rexahn Common Stock equal to one-hundred (100%) percent of the quotient determined by dividing the Purchase Price paid by such Buyer on the Closing Date, by the Final Per Share Price and (y) Series B Warrants
to acquire Series B Warrant Shares in accordance with its terms and conditions (the “Warrant Closing”).
(ii) Obligation to Deliver Additional Common Shares. Promptly but in any event by no later than (x) the earlier to occur of (i) the tenth (10th) Trading Day (as defined in the Warrants) immediately following the Closing Date and (ii) with respect to any Buyer, the first (1st) Trading Day following the delivery to Rexahn of a written notice by such Buyer (an “Early Delivery Notice”) at any time from the fifth (5th) Trading Day immediately following the Closing Date indicating that such Buyer elects to determine the Final Per Share Price using the five (5) lowest Weighted Average Prices (as defined in the
Warrants) of the Rexahn Common Stock during the period beginning on the first (1st) Trading Day immediately following the Closing Date and ending on the date such
Buyer delivers such Early Delivery Notice to Rexahn, inclusive (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events during such period)
(such earlier date, the “First Additional Exchange Shares Delivery Date”) and/or (y) if Section 1(c)(iv) prevents the delivery on the First Additional Exchange Shares Delivery Date of all or any portion of
the Exchange Shares (as defined in Section 5(d)) issued in exchange of Additional Common Shares to a Buyer, the second (2nd) Trading Day immediately after the delivery
to the Escrow Agent (with a copy to Rexahn) of a notice by such Buyer in the form attached hereto as Exhibit D setting forth such Buyer’s election to receive all or any portion of the Exchange Shares issued in exchange of the Additional
Common Shares such Buyer is entitled to pursuant to this Section 1(c)(ii) and the delivery of which is no longer prevented by Section 1(c)(iv) (a “Capacity Notice”) (the First Additional Exchange Shares
Delivery Date and each second (2nd) Trading Day immediately following the delivery to the Escrow Agent of a Capacity Notice, an “Additional
Exchange Shares Delivery Date”), subject to Section 1(c)(iv), Rexahn acknowledges that, in each case, without any additional consideration, the Escrow Agent shall transfer from the escrow account governed by the Securities Escrow Agreement
and deliver via The Depository Trust Company (“DTC”) free delivery / free receive system, the Additional Common Shares (once exchanged for the Exchange Shares as set forth herein) (as adjusted for stock
splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events occurring after the date hereof and including any securities, cash, rights or other property distributed with
respect to such Additional Common Shares or in exchange for such Additional Common Shares), which such Exchange Shares issued in exchange of Additional Common Shares shall be equal to the lesser of (A) the number of Exchange Shares issued in
exchange for the Additional Common Shares deposited in such Buyer’s escrow account (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events
occurring after the date hereof) and (B) the number (if positive) obtained by subtracting (I) the number of Exchange Shares issued in exchange for the Initial Common Shares purchased by such Buyer on the Closing Date (as adjusted for stock splits,
stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events occurring after the date hereof), from (II) the quotient determined by dividing (x) the aggregate Purchase Price paid
by such Buyer on the Closing Date, by (y) with respect to each applicable Buyer, the greater of (a) the Reset Floor Price (as defined in the Warrants) and (b) eighty-five percent (85%) of
the sum of the five (5) lowest Weighted Average Prices of the Rexahn Common Stock during the period beginning on the first (1st) Trading Day immediately following the
Closing Date and ending on the First Additional Exchange Shares Delivery Date, inclusive (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar
events during such period), divided by five (5) (the greater of the price set forth in the immediately preceding clauses (a) and (b), the “Per Share Price” and the lower of (i) the Per Share Price and (ii) the quotient obtained by dividing (x) the Purchase Price paid by such Buyer on the Closing
Date, by (y) the amount of Initial Common Shares purchased by such Buyer on the Closing Date (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar
events related to the Common Stock occurring after the Closing Date), the “Final Per Share Price”). Rexahn shall notify the Escrow Agent in writing of the occurrence of a First Additional Exchange
Shares Delivery Date applicable to each Buyer and shall deliver a copy of such notice to such Buyer. On the First Additional Exchange Shares Delivery Date applicable to each Buyer, the Investor Representative (as defined in the applicable
Securities Escrow Agreement) related to such Buyer and Rexahn shall instruct the Escrow Agent to release to Rexahn from the applicable escrow account governed by the Securities Escrow Agreement any Exchange Shares issued in exchange for Additional
Common Shares to the extent that the Buyer(s) affiliated with such Investor Representative is not entitled to receive such Exchange Shares pursuant to this Section 1(c)(ii) without giving effect to the limitations under Section 1(c)(iv). Upon
request of an Investor Representative, upon delivery of any Capacity Notice to the Escrow Agent, Rexahn hereby agrees to give instructions and to take any additional actions reasonably requested by such Investor Representative, to cause the Escrow
Agent to promptly deliver (but in no event later than two (2) Trading Days after such request) the Additional Common Shares to which the applicable Buyer(s) are entitled pursuant to such Capacity Notice.
(iii) Mechanics of Delivery.
(1) General. Rexahn shall be responsible for all fees and expenses of its transfer agent (the “Transfer Agent”) and all
fees and expenses with respect to the delivery of Exchange Shares issued in exchange of Additional Common Shares and transfer of such shares to each Buyer’s or its designee’s balance account with DTC, if any, including, without limitation, for same
day processing. Rexahn’s obligations to cause the Transfer Agent to deliver and transfer Exchange Shares issued in exchange of Additional Common Shares to the Buyers in accordance with the terms and subject to the conditions hereof and the
Securities Escrow Agreement are absolute and unconditional, irrespective of any action or inaction by such Buyer to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person (as
defined below) or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination. Notwithstanding anything to the contrary contained herein, in no event will Rexahn have any responsibility under Section 1(c)
until after the completion of the Merger and any Exchange Shares issued in exchange of Additional Common Shares be delivered with any restrictive legends or any restrictions or limitations on resale by the Buyers. If Rexahn and/or the Transfer
Agent requires any legal opinions with respect to the delivery of any Exchange Shares issued in exchange of Additional Common Shares without restrictive legends or the removal of any such restrictive legends, Rexahn agrees to cause at its expense
its legal counsel to issue any such legal opinions. Rexahn hereby acknowledges and agrees that the holding period of any Exchange Shares issued in exchange of Additional Common Shares delivered hereunder for purposes of Rule 144 (as defined below)
shall be deemed to have commenced on the Closing Date. For purposes of this Agreement, “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency thereof.
(2) Rexahn’s Failure to Timely Deliver Securities. If Rexahn shall fail for any reason or for no reason to credit such Buyer’s or its designee’s balance account
with DTC on the applicable Additional Exchange Shares Delivery Date for such number of Exchange Shares issued in exchange of shares of Rexahn Common Stock to which such Buyer is entitled under Section 1(c)(ii) (a “Delivery
Failure”), then, in addition to all other remedies available to such Buyer, Rexahn shall pay in cash to such Buyer on each day after such Additional Exchange Shares Delivery Date that Rexahn shall fail to credit such Buyer’s or its
designee’s balance account with DTC for the number of shares of Rexahn Common Stock to which such Buyer is entitled pursuant to Rexahn’s obligation pursuant to clause (ii) below, an amount equal to 1.5 % of the product of (A) the number of Exchange Shares not issued to such Buyer on or prior to the applicable Additional Exchange Shares Delivery Date and to which the Buyer is entitled, and (B) any
trading price of the Rexahn Common Stock selected by the Buyer in writing as in effect at any time during the period beginning on the applicable Additional Exchange Shares Delivery Date and ending on the date Rexahn makes the applicable cash
payment, and if on or after such Trading Day such Buyer (or any Person in respect of, or on behalf, of such Buyer) purchases (in an open market transaction or otherwise) shares of Rexahn Common Stock related to the applicable Delivery Failure,
then, in addition to all other remedies available to such Buyer, Rexahn shall, within two (2) Trading Days after such Buyer’s request and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total
purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Rexahn Common Stock so purchased (the “Buy-In Price”), at which point Rexahn’s obligation to credit
such Buyer’s or its designee’s balance account with DTC for such shares of Rexahn Common Stock shall terminate, or (ii) promptly honor its obligation to credit such Buyer’s or its designee’s balance account with DTC and pay cash to such Buyer in an
amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Rexahn Common Stock, multiplied by (B) any trading price of the Rexahn Common Stock selected by such Buyer in writing as in effect at any time
during the period beginning on the applicable Additional Exchange Shares Delivery Date and ending on the date of such delivery and payment under this Section 1(c)(iii)(2). Nothing shall limit any Buyer’s right to pursue any other remedies
available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to Rexahn’s failure to timely electronically deliver shares of Rexahn Common Stock as required
pursuant to the terms hereof. Notwithstanding the foregoing, Rexahn shall have no obligations under Section 1(c) until after the closing of the Merger.
(3) Charges, Taxes and Expenses. Issuance of the Additional Common Shares to the Escrow Agent and subsequent delivery of the Exchange Shares issued in exchange
thereof to the Buyers shall be made without charge to the Buyers for any issue or transfer tax or other incidental expense in respect of such issuance and transfer, all of which taxes (other than the Buyers’ income taxes) and expenses shall be paid
by Rexahn, and the Exchange Shares issued in exchange of such Additional Common Shares shall be delivered in the name of the respective Buyer or in such name or names as may be directed by the respective Buyer.
(4) Closing of Books. Neither Ocuphire nor Rexahn will close its stockholder books or records in any manner which prevents the timely exercise of such Buyer’s
rights with respect to the Exchange Shares issued in exchange of the Additional Common Shares.
(iv)
Blocker. Notwithstanding anything to the contrary contained herein, Rexahn shall not deliver Exchange Shares issued in exchange of Additional Common Shares, and no Buyer shall
have the right to receive Exchange Shares issued in exchange of Additional Common Shares, and any such delivery shall be null and void and treated as if never made, to the extent that after giving effect to such delivery, such Buyer together with
its other Attribution Parties (as defined in the Warrants) would beneficially own in excess of such percentage corresponding to the checked box on such Buyer’s signature page attached hereto (the “
Maximum Percentage”) of the number of shares of Rexahn Common Stock outstanding immediately after giving effect to such delivery. For purposes of the foregoing sentence, the aggregate number of shares of Rexahn Common
Stock beneficially owned by such Buyer and the other Attribution Parties shall include the number of shares of Rexahn Common Stock held by such Buyer and all other Attribution Parties plus the number of Exchange Shares issued in exchange of
Additional Common Shares delivered to such Buyer pursuant to Section 1(c) hereof with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Rexahn Common Stock which would be issuable upon (i)
exercise of the remaining, unexercised portion of the Warrants beneficially owned by such Buyer or any of the other Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of Rexahn
beneficially owned by such Buyer or any of the other Attribution Parties (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation
contained herein. For purposes of this Section 1(c)(iv), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “
1934 Act”). For
purposes of determining the number of outstanding shares of Rexahn Common Stock that the Buyers may receive without exceeding the Maximum Percentage, the Buyers may rely on the number of outstanding shares of Rexahn Common Stock as reflected in (1)
Rexahn’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (2) a more recent public announcement by Rexahn or (3) any other written notice by
Rexahn or the Transfer Agent setting forth the number of shares of Rexahn Common Stock outstanding (the “
Reported Outstanding Share Number”). If Rexahn receives a Capacity Notice from such Buyer at a time
when the actual number of outstanding shares of Rexahn Common Stock is less than the Reported Outstanding Share Number, Rexahn shall promptly notify the Buyers in writing of the number of shares of Rexahn Common Stock then outstanding and, to the
extent that such Capacity Notice would otherwise cause a Buyer’s beneficial ownership, as determined pursuant to this Section 1(c)(iv), to exceed the Maximum Percentage, such Buyer must notify Rexahn of a reduced number of Exchange Shares issued in
exchange of Additional Common Shares to be delivered pursuant to such Capacity Notice
. For any reason at any time, upon the written or oral request of a Buyer, Rexahn shall within one (1) Business Day (as defined below)
confirm in writing or by electronic mail to such Buyer the number of shares of Rexahn Common Stock then outstanding. In any case, the number of outstanding shares of Rexahn Common Stock shall be determined after giving effect to the conversion or
exercise of securities of Rexahn, including the Warrants held by each Buyer and the other Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the delivery of Exchange Shares issued
in exchange of Additional Common Shares to such Buyer results in such Buyer and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Rexahn Common
Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so delivered by which such Buyer’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “
Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Buyer shall not have the power to vote or to transfer the Excess Shares. If a Buyer’s right to receive Exchange Shares issued in exchange of
Additional Common Shares is limited, in whole or in part, by this Section 1(c)(iv), all such Exchange Shares issued in exchange of Additional Common Shares that are so limited shall be held in abeyance for the benefit of such Buyer by the Escrow
Agent until the earlier to occur of the fifth (5
th) anniversary of the Closing Date and such time as such Buyer notifies Rexahn that its right thereto would not result
in such Buyer exceeding the Maximum Percentage and Rexahn shall promptly but in any event within two (2) Trading Days after the delivery of such Capacity Notice deliver to such Buyer the Exchange Shares issued in exchange of such Additional Common
Shares. Upon delivery of a written notice to Rexahn, each Buyer may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice;
provided that (i) any such
increase in the Maximum Percentage will not be effective until the sixty-first (61
st) day after such notice is delivered to Rexahn and (ii) any such increase or
decrease will apply only to such Buyer and the other Attribution Parties and not to any of the other Buyers that is not an Attribution Party of such Buyer. For purposes of clarity, the Exchange Shares issued in exchange of the Additional Common
Shares deliverable pursuant to the terms hereof in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Buyer for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. The
provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(c)(iv) to the extent necessary to correct this paragraph or any portion of this paragraph which may be
defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(c)(iv) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this
paragraph may not be waived and shall apply to a successor of such Buyer. As used herein, “
Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New
York are authorized or required by law to remain closed.
(d) Warrant Closing. The time of the Warrant Closing shall be 10:00 a.m., New York City time on the tenth (10th) Trading Day immediately following the Closing Date (the “Warrant Closing Date”), and shall take place remotely by electronic transfer of Warrant Closing documentation, or at such other
date and place as the parties hereto agree.
(e) Purchase Price. The purchase price for the Common Shares and the related Warrants to be purchased by each Buyer pursuant to this Agreement shall be the amount set forth opposite
such Buyer’s name in column (5) of the Schedule of Buyers (the “Purchase Price”).
(f) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of Altium Growth Fund, LP (the “Lead
Investor”), any amounts withheld pursuant to Section 5(h)) to Ocuphire for the Common Shares and the Warrants to be issued and sold to such Buyer pursuant to this Agreement by wire transfer of immediately available funds in accordance with
Ocuphire’s written wire instructions and (ii) Ocuphire shall deliver to each Buyer the number of Initial Common Shares such Buyer is purchasing as is set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers. On the Warrant
Closing Date, Rexahn shall deliver to each Buyer (x) a Series A Warrant pursuant to which such Buyer shall have the right to acquire an initial amount of shares of Rexahn Common Stock equal to one-hundred (100%) percent of the quotient determined
by dividing the Purchase Price paid by such Buyer on the Closing Date, by the Final Per Share Price, and (y) a Series B Warrant pursuant to which such Buyer shall have the right to acquire Series B Warrant Shares in accordance with its terms and
conditions, in each case duly executed on behalf of Rexahn and registered in the name of such Buyer or its designee.
2. BUYER’S REPRESENTATIONS AND WARRANTIES. Each Buyer, severally and not jointly, represents and warrants with respect to only itself to each of Ocuphire and Rexahn that, as of
the date hereof and as of the Closing Date:
(a) No Public Sale or Distribution. Such Buyer is (i) acquiring the Common Shares and the Warrants and (ii) upon exercise of the Warrants (other than pursuant to a Cashless
Exercise (as defined in the Warrants)) will acquire the Warrant Shares issuable upon exercise of the Warrants, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted under the 1933 Act; provided, however, that by making the representations herein, such Buyer does not agree to hold any of the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act. Such Buyer is acquiring the Securities hereunder in the ordinary course of its business. Such Buyer
does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities.
(b) Accredited Investor Status; No Disqualification Events. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D. To the extent such Buyer
is a beneficial owner of 10% or more of Rexahn Common Stock as of the date hereof or as of the Closing Date, none of (i) such Buyer, (ii) any of such Buyer’s directors, executive officers, other officers that may serve as a director or officer of
any company in which it invests, general partners or managing members, or (iii) any beneficial owner of Ocuphire’s or Rexahn’s voting equity securities (in accordance with Rule 506(d) of the 1933 Act) held by such Buyer is subject to any
Disqualification Event (as defined below), except for Disqualification Events covered by Rule 506(d)(2) or (d)(3) under the 1933 Act and disclosed reasonably in advance of the Closing in writing in reasonable detail to Ocuphire and Rexahn.
(c) Reliance on Exemptions. Such Buyer understands that the Securities 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 Ocuphire and Rexahn are relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of
such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire the Securities.
(d) Information. Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of Ocuphire and Rexahn and materials
relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors, if any, have been afforded the opportunity to ask questions of Ocuphire and Rexahn. Neither such inquiries nor any other due
diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely on Ocuphire’s and Rexahn’s representations and warranties contained herein. Such Buyer
understands that its investment in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of
the Securities. Such Buyer acknowledges and agrees that neither the Placement Agent (as defined in Section 3(g)) nor any Affiliate (as defined in Rule 144) of the Placement Agent has provided such Buyer with any information or advice with respect
to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation as to Ocuphire and Rexahn or the quality of the Securities and the Placement Agent and any
Affiliate may have acquired non-public information with respect to Ocuphire and Rexahn which such Buyer agrees need not be provided to it. In connection with the issuance of the Securities to such Buyer, neither the Placement Agent nor any of its
Affiliates has acted as a financial advisor or fiduciary to such Buyer.
(e) No Governmental Review. Such Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(f) Transfer or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement: (i) the Securities have not been and are not being registered under
the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) subject to Section 1(c)(iii)(1), such Buyer shall have delivered to Rexahn an opinion of
counsel, in a form reasonably satisfactory to Rexahn, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Buyer provides Rexahn
with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act, as amended, (or a successor rule thereto) (collectively, “Rule
144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller
(or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and
(iii) neither Rexahn nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder; provided, however,
that the Common Shares will be exchanged on the Closing Date and pursuant to Section 5(d) will be exchangeable, for shares of Rexahn Common Stock registered under the 1933 Act pursuant to the registration statement on Form S-4 to be filed by Rexahn
following the execution of this Agreement (as amended from time to time, the “Final Form S-4”). Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide margin account or
other loan or financing arrangement secured by the Securities and such pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to
provide Rexahn with any notice thereof or otherwise make any delivery to Rexahn pursuant to this Agreement or any other Transaction Document (as defined in Section 4(b)), including, without limitation, this Section 2(f).
(g) Legends. Such Buyer understands that the certificates or other instruments representing the Common Shares and the Warrants and, until such time as the resale or exchange of the
Common Shares and the Warrant Shares have been registered under the 1933 Act as contemplated by the Registration Rights Agreement or the most recent draft registration statement on Form S-4 as of the date of this Agreement provided to such Buyer
for such Buyer’s review (the “Draft Form S-4”, and together with the Final Form S-4, the “Form S-4”), as applicable, the stock certificates representing the Securities,
except as set forth below, shall bear a restrictive legend in the following form (and a stop-transfer order may be placed against transfer of such stock certificates):
[NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE EXERCISABLE HAVE BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A FORM REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO
RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The legend set forth above shall be removed and Rexahn shall issue a certificate without such legend to the holder of the Securities upon which it is stamped or issue to such holder by electronic delivery at the
applicable balance account at DTC, if (i) such Securities are registered for resale under the 1933 Act or exchanged for other securities in a transaction registered under the 1933 Act, (ii) in connection with a sale, assignment or other transfer,
except as provided in Section 1(c)(iii)(1), such holder provides Rexahn with an opinion of counsel, in a form reasonably satisfactory to Rexahn, to the effect that such sale, assignment or transfer of the Securities may be made without registration
under the applicable requirements of the 1933 Act, or (iii) the Securities can be sold, assigned or transferred pursuant to Rule 144. Rexahn shall be responsible for the fees of its Transfer Agent and all DTC fees associated with such issuance.
If Rexahn shall fail for any reason or for no reason to issue to the holder of the Securities within two (2) Trading Days after the occurrence of any of (i) through (iii) above (the initial date of such occurrence, the “Legend Removal Date” and such failure, a “Legend Removal Failure”), a certificate without such legend to such holder or to issue such Securities to such holder by electronic delivery at the
applicable balance account at DTC, then, in addition to all other remedies available to such holder, Rexahn shall pay in cash to such holder on each day after the second (2nd)
Trading Day after the Legend Removal Date and during such Legend Removal Failure an amount equal to 2.0% of the product of (i) the number of shares represented by such certificate, and (ii) any trading price of the Rexahn Common Stock selected by
the holder in writing as in effect at any time during the period beginning on the applicable Legend Removal Date and ending on the date Rexahn makes the applicable cash payment, and if on or after such Trading Day the holder purchases (in an open
market transaction or otherwise) Rexahn Common Stock relating to the applicable Legend Removal Failure, then Rexahn shall, within two (2) Trading Days after the holder’s request and in the holder’s discretion, either (i) pay cash to the holder in
an amount equal to the holder’s total purchase price (including brokerage commissions, if any) for the Rexahn Common Stock so purchased (the “Legend Buy-In Price”), at which point the obligation of Rexahn to
deliver such unlegended Securities shall terminate, or (ii) promptly honor its obligation to deliver to the holder such unlegended Securities as provided above and pay cash to the holder in an amount equal to the excess (if any) of the Legend
Buy-In Price over the product of (A) such number of shares of Rexahn Common Stock, times (B) any trading price of the Rexahn Common Stock selected by the holder in writing as in effect at any time during the period beginning on the applicable
Legend Removal Date and ending on the date Rexahn makes the applicable cash payment. Rexahn shall be responsible for the fees of its Transfer Agent and all DTC fees associated with such issuance.
(h) Validity; Enforcement. This Agreement and the other Transaction Documents to which such Buyer is a party have been duly and validly authorized, executed and delivered on behalf
of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(i) No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the other Transaction Documents to which such Buyer is a party and the consummation by
such Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Buyer or (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 such Buyer is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.
3. REPRESENTATIONS AND WARRANTIES OF OCUPHIRE.
Ocuphire represents and warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:
(a) Organization and Qualification. Each of Ocuphire and its “Ocuphire Subsidiaries” (which for purposes of this Agreement means any entity in which Ocuphire, directly or
indirectly, owns any of the capital stock or holds an equity or similar interest) are entities duly organized and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and
authorization to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of Ocuphire and each of the Ocuphire Subsidiaries is duly qualified as a foreign entity to do business and
is in good standing in every jurisdiction in which its ownership of property or 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
reasonably be expected to have a Ocuphire Material Adverse Effect. As used in this Agreement, “Ocuphire Material Adverse Effect” means any material adverse effect on the business, properties, assets,
liabilities, operations, results of operations, condition (financial or otherwise) or prospects of Ocuphire and the Ocuphire Subsidiaries, individually or taken as a whole, or on the transactions contemplated hereby or on the other Ocuphire
Transaction Documents (as defined below) or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of Ocuphire to perform any of its obligations under any of the Ocuphire Transaction
Documents. Ocuphire has no Ocuphire Subsidiaries except as set forth in Schedule 3(a). The outstanding shares of capital stock of each of the Ocuphire Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by Ocuphire or another Ocuphire Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership interests in the Ocuphire Subsidiaries are outstanding.
(b) Authorization; Enforcement; Validity. As of (i) the date hereof, subject to the approval of the Ocuphire stockholders of the transactions contemplated by the Draft Merger
Agreement (collectively, the “Ocuphire Required Stockholder Approvals”) and (ii) the Closing Date, Ocuphire has the requisite corporate power and authority to enter into and perform its obligations under this
Agreement, the Securities Escrow Agreement, the Lock-Up Agreements (as defined in Section 8(k)) and each of the other agreements entered into by Ocuphire in connection with the transactions contemplated by this Agreement (collectively, the “Ocuphire Transaction Documents”) and to issue the Common Shares in accordance with the terms hereof and thereof. The execution and delivery of this Agreement and the other Ocuphire Transaction Documents by
Ocuphire and the consummation by Ocuphire of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Common Shares, have been duly authorized by Ocuphire’s board of directors and (other than the filing
of a Form D with the SEC and any other filings as may be required by any state securities agencies), no further filing, consent or authorization is required by Ocuphire, its board of directors or its stockholders (other than, as of the date hereof,
the Ocuphire Required Stockholder Approvals). This Agreement and the other Ocuphire Transaction Documents have been duly executed and delivered by Ocuphire, and constitute the legal, valid and binding obligations of Ocuphire, enforceable against
Ocuphire 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 similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies.
(c) Issuance of Common Shares. As of (i) the date hereof, subject to the Ocuphire Required Stockholder Approvals and (ii) the Closing Date, the issuance of the Common Shares is duly
authorized and, upon issuance in accordance with the terms of the Ocuphire Transaction Documents, the Common Shares shall be validly issued and free from all preemptive or similar rights (except for those which have been validly waived prior to the
date hereof), taxes, liens and charges and other encumbrances with respect to the issue thereof and the Common Shares shall be fully paid and nonassessable with the holders being entitled to all rights accorded to a holder of Ocuphire Common
Stock. Assuming the accuracy of each of the representations and warranties set forth in Section 3 of this Agreement, the offer and issuance by Ocuphire of the Common Shares is exempt from registration under the 1933 Act.
(d) No Conflicts. Except as disclosed in Schedule 3(d), the execution, delivery and performance of the Ocuphire Transaction Documents by Ocuphire and any of the Ocuphire
Subsidiaries and the consummation by Ocuphire of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will not (i) as of (x) the date hereof, subject to the Ocuphire Required
Stockholder Approvals, and (y) as of the Closing Date, result in a violation of the Ocuphire Certificate of Incorporation (as defined below) or Ocuphire Bylaws (as defined below) or other organizational documents of Ocuphire or any of the Ocuphire
Subsidiaries, any capital stock of Ocuphire or any of the Ocuphire Subsidiaries or the articles of association or bylaws of Ocuphire or any of the Ocuphire Subsidiaries or (ii) conflict with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Ocuphire or any of the Ocuphire
Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws, rules and regulations) applicable to Ocuphire or any of the Ocuphire Subsidiaries
or by which any property or asset of Ocuphire or any of the Ocuphire Subsidiaries is bound or affected, except, in the case of clauses (ii) and (iii) above, as would not have or reasonably be expected to result in a Ocuphire Material Adverse
Effect.
(e) Consents. As of (i) the date hereof, other than the Ocuphire Required Stockholder Approvals and (ii) the Closing Date, Ocuphire is not required to obtain any consent from,
authorization or order of, or make any filing or registration with (other than the filing of a Form D with the SEC and any other filings as may be required by any state securities agencies or the filing of an amendment to Ocuphire’s certificate of
incorporation following receipt of the Ocuphire Required Stockholder Approvals to increase the number of authorized shares of Ocuphire Common Stock), any court, governmental agency or any regulatory or self-regulatory agency or any other Person in
order for it to execute, deliver or perform any of its obligations under or contemplated by the Ocuphire Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and
registrations which Ocuphire is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the Closing Date (or in the case of filings detailed above, will be made timely after the Closing Date).
(f) Acknowledgment Regarding Buyer’s Purchase of Securities. Ocuphire acknowledges and agrees that each Buyer is acting solely in the capacity of an arm’s length purchaser with
respect to the Ocuphire Transaction Documents and the transactions contemplated hereby and thereby and that, prior to the purchase of Securities hereunder, no Buyer is (i) an officer or director of Ocuphire or any of the Ocuphire Subsidiaries, (ii)
an “affiliate” of Ocuphire or any of the Ocuphire Subsidiaries (as defined in Rule 144) or (iii) to the knowledge of Ocuphire, a “beneficial owner” of more than 10% of the Ocuphire Common Stock (as defined for purposes of Rule 13d-3 of the 1934
Act). Ocuphire further acknowledges that no Buyer is acting as a financial advisor or fiduciary of Ocuphire or any of the Ocuphire Subsidiaries (or in any similar capacity) with respect to the Ocuphire Transaction Documents and the transactions
contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Ocuphire Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s
purchase of the Securities. Ocuphire further represents to each Buyer that Ocuphire’s decision to enter into the Ocuphire Transaction Documents has been based solely on the independent evaluation by Ocuphire and its representatives.
(g) No General Solicitation; Placement Agent’s Fees. Neither Ocuphire, nor any of the Ocuphire Subsidiaries or their affiliates, nor any Person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. Ocuphire shall be responsible for the payment of any placement agent’s fees, financial
advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby, including, without limitation, placement agent fees payable to
Canaccord Genuity LLC and Cantor Fitzgerald & Co. (collectively, the “Placement Agent”) in connection with the sale of the Securities. Ocuphire shall pay, and hold each Buyer harmless against, any
liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. Ocuphire acknowledges that it has engaged the Placement Agent in connection with the sale of the
Securities. Other than the Placement Agent, neither Ocuphire nor any of the Ocuphire Subsidiaries has not engaged any placement agent or other agent in connection with the offer or sale of the Securities.
(h) No Integrated Offering. None of Ocuphire, the Ocuphire Subsidiaries, their affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or
cause this offering of the Securities to require approval of stockholders of Ocuphire for purposes of the 1933 Act or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or
automated quotation system on which any of the securities of Rexahn are listed or designated for quotation. None of Ocuphire, the Ocuphire Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that
would require registration of the issuance of any of the Securities under the 1933 Act or cause the offering of any of the Securities to be integrated with other offerings for purposes of any such applicable stockholder approval provisions.
(i) Application of Takeover Protections; Rights Agreement. Ocuphire and its board of directors have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, interested stockholder, business combination (including, without limitation, under Section 203 of the Delaware General Corporation Law (“DGCL”)), poison pill (including, without limitation,
any distribution under a rights agreement) or other similar anti-takeover provision under the Ocuphire Certificate of Incorporation, Ocuphire Bylaws or other organizational documents or the laws of the jurisdiction of its formation which is or
could become applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, Ocuphire’s issuance of the Common Shares and any Buyer’s ownership of the Securities. Ocuphire and its board of
directors have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Ocuphire Common Stock or a change in control of Ocuphire or
any of the Ocuphire Subsidiaries.
(j) S-4; Financial Statements. As of the date hereof, the sections of the Draft Form S-4 titled “Risk Factors – Risks Related to Ocuphire,” “Ocuphire Business,” “Ocuphire
Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Related Party Transactions of Directors and Executive Officers of the Combined Company – Ocuphire Transactions” and “Principal Stockholders of Ocuphire,” and
at the time the Final Form S-4 or such amendment thereto is filed with the SEC, do not, and will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, the Draft Form S-4, and as of each filing date of the Final Form S-4 or any amendment thereto, the financial statements of
Ocuphire included in the Draft Form S-4 comply, and in the Final Form S-4 will comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such
financial statements have been, and will be, prepared in accordance with U.S. generally accepted accounting principles consistently applied during the periods involved (“GAAP”), (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material
respects the financial position of Ocuphire and the Ocuphire Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments which will not be material, either individually or in the aggregate). No other information provided by or on behalf of Ocuphire to any of the Buyers which is not included in the Draft Form S-4 (including, without limitation,
information referred to in Section 2(d) of this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in
the light of the circumstance under which they are or were made, not misleading.
(k) Absence of Certain Changes. Except as disclosed in Schedule 3(k)(i), since December 31, 2019, there has been no material adverse change and no material adverse
development in the business, assets, liabilities, properties, operations, condition (financial or otherwise), results of operations or prospects of Ocuphire or the Ocuphire Subsidiaries. Except as disclosed in Schedule 3(k)(ii), since
December 31, 2019, neither Ocuphire nor any of the Ocuphire Subsidiaries have (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business or (iii) had
capital expenditures, individually or in the aggregate, in excess of $100,000. Neither Ocuphire nor any of the Ocuphire Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency,
reorganization, receivership, liquidation or winding up, nor does Ocuphire or any of the Ocuphire Subsidiaries have any knowledge or reason to believe that any of its creditors intend to initiate involuntary bankruptcy proceedings or any actual
knowledge of any fact which would reasonably lead a creditor to do so. Ocuphire and the Ocuphire Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and, after giving effect to the transactions contemplated
hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Agreement, “Insolvent” means, with respect to any Person, (i) the present fair saleable value of such Person’s
assets is less than the amount required to pay such Person’s total Indebtedness (as defined below), (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured, (iii) such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted.
(l) No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated to occur with
respect to Ocuphire, the Ocuphire Subsidiaries or their respective business, properties, prospects, operations or financial condition, that would be required to be disclosed by Ocuphire under applicable securities laws on a registration statement
on Form S-1 filed with the SEC relating to an issuance and sale by Ocuphire of Ocuphire Common Stock and which has not been publicly announced.
(m) Conduct of Business; Regulatory Permits. Neither Ocuphire nor any of the Ocuphire Subsidiaries is in violation of any term of or in default under the Ocuphire Certificate of
Incorporation, any certificate of designations, preferences or rights of any outstanding series of preferred stock of Ocuphire or any of the Ocuphire Subsidiaries, the Ocuphire Bylaws or their organizational charter or memorandum of association or
certificate of incorporation or articles of association or bylaws, respectively. Neither Ocuphire nor any of the Ocuphire Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to
Ocuphire or any of the Ocuphire Subsidiaries, and neither Ocuphire nor any of the Ocuphire Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations which would not, individually or in
the aggregate, reasonably be expected to have a Ocuphire Material Adverse Effect. Ocuphire and the Ocuphire Subsidiaries possess all certificates, authorizations and permits issued by the appropriate foreign, federal or state regulatory
authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Ocuphire Material Adverse Effect, and neither
Ocuphire nor any such Ocuphire Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. Without limiting the generality of the foregoing, except as set forth in
Schedule 3(m), Ocuphire has no knowledge of any facts or circumstances that would reasonably lead to delisting or suspension of the Rexahn Common Stock by the Nasdaq Capital Market (the “Principal Market”)
in the foreseeable future.
(n) Foreign Corrupt Practices. Neither Ocuphire nor any of the Ocuphire Subsidiaries, nor any director, officer, agent, employee or other Person acting on behalf of Ocuphire or any
of the Ocuphire Subsidiaries has, in the course of its actions for, or on behalf of, Ocuphire or any of the Ocuphire Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of
1977, as amended (the “FCPA”); or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
(o) Transactions With Affiliates. Except as set forth in Schedule 3(o), none of the officers, directors or employees of Ocuphire or any of the Ocuphire Subsidiaries is
presently a party to any transaction with Ocuphire or any of the Ocuphire Subsidiaries (other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director or employee or, to the knowledge of the Ocuphire or any of the Ocuphire
Subsidiaries, any corporation, partnership, trust or other Person in which any such officer, director, or employee has a substantial interest or is an employee, officer, director, trustee or partner.
(p) Equity Capitalization. As of the date hereof, the authorized capital stock of Ocuphire consists of (i) 5,000,000 shares of Ocuphire Common Stock, of which as of the date hereof,
3,543,751 shares are issued and outstanding, 1,175,000 shares are reserved for issuance pursuant to Ocuphire’s stock option and purchase plans, of which 281,249 shares are subject to outstanding Ocuphire options granted under the Ocuphire stock
plans and no shares are subject to outstanding Ocuphire restricted stock units. Prior to the Closing Date, 894,367 shares shall have been reserved for issuance pursuant to securities exercisable or exchangeable for, or convertible, into Ocuphire
Common Stock (including 892,425 shares of Ocuphire Common Stock reserved for issuance in exchange for those certain notes as set forth in that certain conversion agreement, dated as of June 8, 2020, by and among Ocuphire and the entities whose
names are listed on the schedule of purchasers therein (the “Conversion Agreement”), assuming the conversion of such notes as of the date hereof, and any increases of the Ocuphire Common Stock from such
conversion after the date hereof shall only result from accrued interest), and (ii) 625,000 shares of preferred stock, of which as of the date hereof, no shares were issued and outstanding. No Ocuphire Common Stock is held in treasury. All of
such outstanding shares are duly authorized and as of (i) the date hereof, the Ocuphire Required Stockholder Approvals, and (ii) as of the Closing Date, have been, or upon issuance will be, validly issued and are fully paid and nonassessable. (i)
Except as disclosed in Schedule 3(p)(i), hereto, none of Ocuphire’s or any Ocuphire Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by Ocuphire or any
Ocuphire Subsidiary’s; (ii) except as disclosed in Schedule 3(p)(ii), there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any capital stock of Ocuphire or any of the Ocuphire Subsidiaries, or contracts, commitments, understandings or arrangements by which Ocuphire is or may become bound to issue additional capital
stock of Ocuphire or any of the Ocuphire Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for,
any capital stock of Ocuphire or any of the Ocuphire Subsidiaries; (iii) except as disclosed in Schedule 3(p)(iii), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or
instruments evidencing Indebtedness of Ocuphire or any of the Ocuphire Subsidiaries or by which Ocuphire or any of the Ocuphire Subsidiaries is or may become bound; (iv) except as disclosed in Schedule 3(p)(iv), there are no financing
statements securing obligations in any amounts filed in connection with Ocuphire or any of the Ocuphire Subsidiaries; (v), except as disclosed in Schedule 3(p)(v), there are no agreements or arrangements under which Ocuphire or any of the
Ocuphire Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (vi) except as disclosed in Schedule 3(p)(vi), there are no outstanding securities or instruments of Ocuphire or any of the Ocuphire
Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which Ocuphire or any of the Ocuphire Subsidiaries is or may become bound to redeem a security of Ocuphire
or any of the Ocuphire Subsidiaries; (vii) except as disclosed in Schedule 3(p)(vii), there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii)
except as disclosed in Schedule 3(p)(viii), neither Ocuphire nor any of its Ocuphire Subsidiaries has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) except as disclosed in Schedule
3(p)(ix), Ocuphire or any of the Ocuphire Subsidiaries have no liabilities or obligations, other than those incurred in the ordinary course of Ocuphire’s or any of the Ocuphire Subsidiary’s respective businesses and which, individually or in
the aggregate, do not or could not have a Ocuphire Material Adverse Effect. True, correct and complete copies of Ocuphire’s certificate of incorporation, as amended and as in effect on the date hereof (the “Ocuphire
Certificate of Incorporation”), and Ocuphire’s bylaws, as in effect on the date hereof (the “Ocuphire Bylaws”), and the terms of all securities convertible
into, or exercisable or exchangeable for, Ocuphire Common Stock and the material rights of the holders thereof in respect thereto shall be provided to the Buyers on the Closing Date.
(q) Indebtedness and Other Contracts. Neither Ocuphire nor any of the Ocuphire Subsidiaries, (i) except as disclosed in Schedule 3(q)(i), has any outstanding Indebtedness,
(ii) except as disclosed in Schedule 3(q)(ii), is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument would reasonably be
expected to result in a Ocuphire Material Adverse Effect, (iii) except as disclosed in Schedule 3(q)(iii), is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where
such violations and defaults would not result, individually or in the aggregate, in a Ocuphire Material Adverse Effect, or (iv) except as disclosed in Schedule 3(q)(iv), is a party to any contract, agreement or instrument relating to any
Indebtedness, the performance of which, in the judgment of Ocuphire’s officers, has or is expected to have a Ocuphire Material Adverse Effect. Schedule 3(q) provides a detailed description of the material terms of such outstanding
Indebtedness. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all
reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or
assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under
any leasing or similar arrangement which, in connection with GAAP is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any
Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations (as defined below) in respect of indebtedness or obligations of others of
the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any
indebtedness, capital lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
(r) 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 or, to the knowledge of Ocuphire, threatened against or affecting Ocuphire or any of the Ocuphire Subsidiaries, the Ocuphire Common Stock or any of the Ocuphire Subsidiary’s capital stock or any of Ocuphire’s or any of the Ocuphire
Subsidiary’s officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in Schedule 3(r). The matters set forth in Schedule 3(r) would not reasonably be expected to
have an Ocuphire Material Adverse Effect.
(s) Insurance. Ocuphire and each of the Ocuphire Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as
management of Ocuphire believes to be prudent and customary in the businesses in which Ocuphire and the Ocuphire Subsidiaries are engaged. Neither Ocuphire nor any of the Ocuphire Subsidiaries has been refused any insurance coverage sought or
applied for and neither Ocuphire nor any of the Ocuphire Subsidiaries has any reason to believe that it will be unable 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 Ocuphire Material Adverse Effect.
(t) Employee Relations. Neither Ocuphire nor any of the Ocuphire Subsidiaries is a party to any collective bargaining agreement or employs any member of a union. Ocuphire and the
Ocuphire Subsidiaries believe that their relations with their respective employees are good. No executive officer (as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of Ocuphire or any of the Ocuphire Subsidiaries has
notified Ocuphire or any such Ocuphire Subsidiary that such officer intends to leave Ocuphire or any such Ocuphire Subsidiary or otherwise terminate such officer’s employment with Ocuphire or any such Ocuphire Subsidiary. No executive officer or
other key employee of Ocuphire or any of the Ocuphire Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition
agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer or other key employee (as the case may be) does not subject Ocuphire or any of the Ocuphire Subsidiaries to any
liability with respect to any of the foregoing matters. Ocuphire and the Ocuphire Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits,
terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Ocuphire Material Adverse Effect.
(u) Title. Ocuphire and the Ocuphire Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by
them which is material to the business of Ocuphire and the Ocuphire Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by Ocuphire and any of the Ocuphire Subsidiaries. Any real property and facilities held under lease by Ocuphire and any of the Ocuphire 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 Ocuphire and the Ocuphire Subsidiaries.
(v) Intellectual Property Rights. Ocuphire and the Ocuphire Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, original works of authorship, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and
registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as now conducted. Each of the patents owned by Ocuphire or any of the Ocuphire Subsidiaries is listed
on Schedule 3(v)(i). Except as set forth in Schedule 3(v)(ii), none of Ocuphire’s or any of the Ocuphire’s Subsidiaries’ Intellectual Property Rights have expired, terminated or been abandoned, or are expected to expire, terminate
or be abandoned, within three years from the date of this Agreement. Ocuphire has no knowledge of any infringement by Ocuphire or the Ocuphire Subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding being
made or brought, or to the knowledge of Ocuphire or any of the Ocuphire Subsidiaries, being threatened, against Ocuphire or any of the Ocuphire Subsidiaries regarding their Intellectual Property Rights. Neither Ocuphire nor any of the Ocuphire
Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing infringements or claims, actions or proceedings. Ocuphire and the Ocuphire Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of all of their Intellectual Property Rights.
(w) Environmental Laws. Ocuphire and the Ocuphire Subsidiaries (A) are in compliance with all Environmental Laws (as defined below), (B) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (A), (B)
and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Ocuphire Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or
foreign 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.
(x) Subsidiary Rights. Ocuphire or one of the Ocuphire Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends
and distributions on, all capital securities of the Ocuphire Subsidiaries as owned by Ocuphire or such Ocuphire Subsidiary.
(y) Tax Status. Ocuphire and each of the Ocuphire 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 provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of Ocuphire know of no basis for any such claim.
(z) Internal Accounting. Ocuphire and each of the Ocuphire Subsidiaries maintain 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 GAAP and applicable law, and to maintain
asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared
with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Except as set forth in Schedule 3(z), during the twelve months prior to the date hereof neither Ocuphire nor
any of the Ocuphire Subsidiaries has received any notice or correspondence from any accountant relating to any material weakness in any part of the system of internal accounting controls of Ocuphire or any of the Ocuphire Subsidiaries.
(aa) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between Ocuphire and an unconsolidated or other off balance sheet entity that would
be reasonably likely to have an Ocuphire Material Adverse Effect.
(bb) Investment Company Status. Neither Ocuphire nor any of the Ocuphire Subsidiaries is, and upon consummation of the sale of the Securities, and for so long as any Buyer holds any
Securities, will not be, an “investment company,” an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” as such
terms are defined in the Investment Company Act of 1940, as amended.
(cc) Acknowledgement Regarding Buyers’ Trading Activity. Ocuphire acknowledges and agrees that, except as set forth in the Leak-Out Agreements (as defined in Section 8(t)), (i) none of
the Buyers has been asked to agree, nor has any Buyer agreed, to desist from purchasing or selling, long and/or short, securities of Ocuphire or Rexahn, or “derivative” securities based on securities issued by Ocuphire or Rexahn or to hold the
Securities for any specified term; (ii) any Buyer, and counter-parties in “derivative” transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in the Ocuphire Common Stock or Rexahn Common
Stock and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. Ocuphire further understands and acknowledges that (a) one or more Buyers may engage in
hedging and/or trading activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares are being determined and (b) such hedging and/or
trading activities, if any, can reduce the value of the existing stockholders’ equity interest in Ocuphire and/or Rexahn both at and after the time the hedging and/or trading activities are being conducted. Ocuphire acknowledges that such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Warrants or any of the documents executed in connection herewith.
(dd) Manipulation of Price. Ocuphire has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result, or
that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security of Ocuphire or Rexahn to facilitate the sale or resale of any of the Securities, (ii) other than the Placement Agent, sold, bid
for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) other than the Placement Agent, paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
Ocuphire or Rexahn.
(ee) FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (the “FDA”) under the Federal Food, Drug and
Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by Ocuphire or any of its Ocuphire Subsidiaries (each such
product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by Ocuphire in compliance with all applicable requirements
under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not have a Ocuphire Material Adverse Effect. There is no pending, completed or, to Ocuphire’s knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against Ocuphire or any of its Ocuphire Subsidiaries, and none of Ocuphire or any of its Ocuphire Subsidiaries has
received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or
packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales
promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by Ocuphire or any of its Ocuphire Subsidiaries, (iv) enjoins production at any facility of Ocuphire or any of its Ocuphire
Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with Ocuphire or any of its Ocuphire Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by Ocuphire or any of its
Ocuphire Subsidiaries, and which, either individually or in the aggregate, would have a Ocuphire Material Adverse Effect. The properties, business and operations of Ocuphire have been and are being conducted in all material respects in accordance
with all applicable laws, rules and regulations of the FDA. Except as set forth on Schedule 3(ee) or as disclosed in the SEC Documents (as defined in Annex I), Ocuphire has not been informed by the FDA that the FDA will prohibit the
marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by Ocuphire nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed
to be developed by Ocuphire.
(ff) U.S. Real Property Holding Corporation. Neither Ocuphire nor any of the Ocuphire Subsidiaries is, or has ever been, and so long as any of the Securities are held by any of the
Buyers, shall become, a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and Ocuphire and each Ocuphire Subsidiary shall so certify upon any Buyer’s request.
(gg) Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection with the issuance, sale
and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid or provided for by Ocuphire, and all laws imposing such taxes will be or will have been complied with.
(hh) Bank Holding Company Act. Neither Ocuphire nor any of the Ocuphire Subsidiaries or affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither Ocuphire nor any of the Ocuphire Subsidiaries or their
affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA
and to regulation by the Federal Reserve. Neither Ocuphire nor any of the Ocuphire Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation
by the Federal Reserve.
(ii) Shell Company Status. Ocuphire is not, and has never been, an issuer identified in, or subject to, Rule 144(i)(1) of the 1933 Act.
(jj) Compliance with Anti-Money Laundering Laws. The operations of
Ocuphire and the Ocuphire Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and all other applicable
U.S. and non-U.S. anti-money laundering laws, rules and regulations, including, but not limited to, those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the United States Bank Secrecy Act, as amended by the
USA PATRIOT Act of 2001, and the United States Money Laundering Control Act of 1986 (18 U.S.C. §§1956 and 1957), as amended, as well as the implementing rules and regulations promulgated
thereunder, and the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency or self-regulatory body (collectively, the “Anti-Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Ocuphire or any of the Ocuphire Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of Ocuphire,
threatened.
(kk) No Conflicts with Sanctions Laws. Neither Ocuphire nor any of the Ocuphire Subsidiaries, nor
any director, officer, employee, agent, affiliate or other Person associated with or acting on behalf of Ocuphire or any of the Ocuphire Subsidiaries or any of their affiliates is, or
is directly or indirectly owned or controlled by, a Person that is currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”) or the U.S. Departments of State or Commerce and including, without
limitation, the designation as a “Specially Designated National” or on the “Sectoral Sanctions Identifications List”, collectively “Blocked Persons”), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant sanctions authority (collectively, “Sanctions Laws”); neither Ocuphire, nor any of the Ocuphire Subsidiaries, any director, officer, employee,
agent, affiliate or other Person associated with or acting on behalf of Ocuphire, any of the Ocuphire Subsidiaries or their
affiliates, is located, organized or resident in a country or territory that is the subject or target of a comprehensive embargo or Sanctions Laws prohibiting trade with the country or territory, including, without limitation, Crimea, Cuba, Iran,
North Korea, Sudan and Syria (each, a “Sanctioned Country”); Ocuphire maintains in effect and enforces
policies and procedures designed to ensure compliance by Ocuphire and the Ocuphire Subsidiaries with applicable Sanctions Laws; neither
Ocuphire, nor any of the Ocuphire Subsidiaries, any director, officer, employee, agent, affiliate or other Person associated with or acting on behalf of Ocuphire or any of the Ocuphire Subsidiaries or their affiliates, acting in any capacity in connection with the operations of Ocuphire or the Ocuphire Subsidiaries, conducts any business with or for the benefit of any Blocked Person or engages in making or receiving any contribution of funds, goods or services to, from or for the benefit of any Blocked Person, or deals in, or
otherwise engages in any transaction relating to, any property or interests in property blocked or subject to blocking pursuant to any applicable Sanctions Laws; no action of Ocuphire or
the Ocuphire Subsidiaries in connection with (i) the execution, delivery and performance of this Agreement and the other Ocuphire Transaction Documents, (ii) the issuance and sale of the
Securities, or (iii) the direct or indirect use of proceeds from the Securities or the consummation of any other transaction contemplated hereby or by the other Ocuphire Transaction Documents or the fulfillment of the terms hereof or thereof,
will result in the proceeds of the transactions contemplated hereby and by the other Ocuphire Transaction Documents being used, or loaned, contributed or otherwise made available, directly or indirectly, to any Ocuphire Subsidiary, joint venture
partner or other Person, for the purpose of (i) unlawfully funding or facilitating any activities of or business with any Person that, at the time of such funding or facilitation, is the subject or target of Sanctions Laws, (ii) unlawfully
funding or facilitating any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor,
investor or otherwise) of Sanctions Laws. For the past five (5) years, Ocuphire and the Ocuphire Subsidiaries have not knowingly engaged in and is not now knowingly engaged in any
dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject or the target of Sanctions Laws or with any Sanctioned Country.
(ll) Anti-Bribery. Neither Ocuphire nor any of the Ocuphire
Subsidiaries has made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation of any law which violation is required to be disclosed. Neither Ocuphire, nor any of the Ocuphire Subsidiaries, any of their affiliates, nor any director, officer, agent,
employee or other Person associated with or acting on behalf of Ocuphire, the Ocuphire Subsidiaries or any of their
affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or
employee, to any employee or agent of a private entity with which Ocuphire or the Ocuphire Subsidiaries does or seeks to do business or to foreign or domestic political parties or
campaigns, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision
of the FCPA, the U.K. Bribery Act 2010, or any other similar law of any other jurisdiction in which Ocuphire or the Ocuphire Subsidiaries operates its business, including, in each case, the rules and regulations thereunder (the “Anti-Bribery Laws”), (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or
anything else of value, directly or indirectly, to any Person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or
otherwise to secure any improper advantage or (v) otherwise made any offer, bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment; Ocuphire and the Ocuphire
Subsidiaries have instituted and have maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with the laws referred to in (iii)
above and with this representation and warranty; none of Ocuphire, nor the Ocuphire Subsidiaries or any of their affiliates
will directly or indirectly use the proceeds of the Convertible Securities (as defined below) or Options (as defined below) or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other
Person for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in (iii) above; there are, and have been, no allegations, investigations or inquiries with regard to a potential violation of
any Anti-Bribery Laws by Ocuphire, the Ocuphire Subsidiaries or their affiliates, or any of their respective current
or former directors, officers, employees, stockholders, representatives or agents, or other Persons acting or purporting to act on their behalf.
(mm) No Additional Agreements. Neither Ocuphire nor any of the Ocuphire Subsidiaries have any agreement or understanding with any Buyer with respect to the transactions contemplated by
the Ocuphire Transaction Documents other than as specified in the Ocuphire Transaction Documents.
(nn) Disclosure. Except for discussions specifically regarding the offer and sale of the Securities, Ocuphire confirms that neither it nor any other Person acting on its behalf has
provided any of the Buyers or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning Ocuphire, any of any of the Ocuphire Subsidiaries, Rexahn or any
of the Rexahn Subsidiaries (as defined below), other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents. Ocuphire understands and confirms that each of the Buyers will rely on the foregoing
representations in effecting transactions in securities of Ocuphire and Rexahn. All disclosure provided to the Buyers regarding Ocuphire or any of the Ocuphire Subsidiaries, their business and the transactions contemplated hereby, including the
schedules to this Agreement, furnished by or on behalf of Ocuphire is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of Ocuphire to you pursuant to or in connection with this Agreement and the other Ocuphire Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. Each press release issued by Ocuphire or any of
the Ocuphire Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to Ocuphire or any of the Ocuphire Subsidiaries or its
or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or
announcement by Ocuphire but which has not been so publicly disclosed. Ocuphire acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Section 2.
(oo) Stock Option Plans. Each stock option granted by Ocuphire was granted (i) in accordance with the terms of the applicable Ocuphire stock option plan and (ii) with an exercise
price at least equal to the fair market value of the Ocuphire Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under Ocuphire’s stock option plan has been backdated.
Ocuphire has not knowingly granted, and there is no and has been no Ocuphire policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement
of material information regarding Ocuphire or the Ocuphire Subsidiaries or their financial results or prospects.
(pp) No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated by Ocuphire to arise, between
Ocuphire and the accountants and lawyers formerly or presently employed by Ocuphire and Ocuphire is current with respect to any fees owed to its accountants and lawyers which could affect Ocuphire’s ability to perform any of its obligations under
any of the Ocuphire Transaction Documents.
(qq) No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on 506(b) of Regulation D (“Regulation D
Securities”), none of Ocuphire, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of Ocuphire participating in the offering hereunder, any beneficial owner of 20% or more of Ocuphire’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with Ocuphire in any capacity at the time of sale (each, an “Ocuphire Covered Person” and, together, “Ocuphire Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under
the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). Ocuphire has exercised reasonable care to determine whether any Issuer Covered Person is
subject to a Disqualification Event. Ocuphire has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Buyers a copy of any disclosures provided thereunder.
(rr) Other Covered Persons. Ocuphire is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration for solicitation
of Buyers or potential purchasers in connection with the sale of any Regulation D Securities.
(ss) Notice of Disqualification Events. Ocuphire will notify the Buyers and the Placement Agent in writing, prior to the Closing Date of (i) any Disqualification Event relating to
any Ocuphire Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Ocuphire Covered Person.
(tt) Dilutive Effect. Ocuphire understands and
acknowledges that the number of Additional Common Shares issuable pursuant to Section 1(c)(ii) and the number of Warrant Shares issuable pursuant to the terms of the Warrants will increase in certain circumstances. Ocuphire further acknowledges
that its obligation to issue Additional Common Shares pursuant to this Agreement and the obligation of Rexahn to issue Warrant Shares pursuant to the terms of the Warrants in accordance with this Agreement and with the Warrants are absolute and
unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders of Ocuphire or Rexahn.
4. REPRESENTATIONS AND WARRANTIES OF REXAHN.
Rexahn represents and warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:
(a) Organization and Qualification. Each of Rexahn and each of its “Rexahn Subsidiaries” (which for purposes of this Agreement means any
entity in which Rexahn, directly or indirectly, owns any of the capital stock or holds an equity or similar interest) (the Rexahn Subsidiaries, together with the Ocuphire Subsidiaries, the “Subsidiaries”) are
entities duly organized and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authorization to own their properties and to carry on their business as now being
conducted and as presently proposed to be conducted. Each of Rexahn and each of the Rexahn Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or 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 reasonably be expected to have a Rexahn Material Adverse Effect. As used in this
Agreement, “Rexahn Material Adverse Effect” means any material adverse effect on the business, properties, assets, liabilities, operations, results of operations or
condition (financial or otherwise) of Rexahn and the Rexahn Subsidiaries, individually or taken as a whole, or on the
transactions contemplated hereby or on the other Rexahn Transaction Documents (as defined below) or by the agreements and instruments to be entered into in connection herewith or
therewith, or on the authority or ability of Rexahn to perform any of its obligations under any of the Rexahn Transaction Documents. Rexahn has no Rexahn Subsidiaries except Razor Merger
Sub, Inc., a Delaware corporation. The outstanding shares of capital stock of each of the Rexahn Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are owned by Rexahn or another Rexahn Subsidiary free
and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership
interests in the Rexahn Subsidiaries are outstanding.
(b)
Authorization; Enforcement; Validity. As of (i) the date hereof, subject to the approval of the Rexahn stockholders for the transactions contemplated by the Draft Merger
Agreement and the Rexahn Transaction Documents (collectively, the “
Rexahn Required Stockholder Approvals”), and (ii) the Closing Date, Rexahn has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Warrants, the Registration Rights Agreement, the Securities Escrow Agreement, the Irrevocable Transfer Agent Instructions (as defined in Section 6(b)), the Lock-Up Agreements, the Leak-Out
Agreements and each of the other agreements entered into by Rexahn in connection with the transactions contemplated by this Agreement (collectively, the “
Rexahn Transaction Documents” and, together with the Ocuphire Transaction Documents, the “
Transaction Documents”) and to issue the Warrants and the Warrant Shares in accordance
with the terms hereof and thereof. The execution and delivery of this Agreement and the other
Rexahn Transaction Documents by
Rexahn
and the consummation by
Rexahn of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Warrants and the reservation for issuance and
the issuance of the Warrant Shares issuable upon exercise of the Warrants have been duly authorized by
Rexahn’s board of directors and (other than the filing with the SEC of one or more
Registration Statements (as defined in the Registration Rights Agreement) in accordance with the requirements of the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies) no
further filing, consent or authorization is required by
Rexahn, its board of directors or its stockholders (other than, as of the date hereof, the Rexahn Required Stockholder Approvals).
This Agreement has been duly executed and delivered by
Rexahn, and constitutes the legal, valid and binding obligations of
Rexahn,
enforceable against
Rexahn in accordance with its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(c) Issuance of Securities. The issuance of the Warrants are duly authorized and, upon issuance in accordance with the terms of the Rexahn Transaction Documents, as
of (i) the date hereof, subject to the Rexahn Required Stockholder Approvals, and (ii) the Closing Date, the Warrants shall be validly issued and free from all preemptive or similar rights (except for those which have been validly waived prior to
the date hereof), taxes, liens and charges and other encumbrances with respect to the issue thereof. As of the Closing Date, a number of shares of Rexahn Common Stock shall have been
duly authorized and reserved for issuance which equals (i) until the Reservation Date (as defined in the Warrants), such calculation shall assume that the Series A Warrants and the Series B Warrants are then exercisable in full into a number of
shares of Rexahn Common Stock equal to the sum of at least (x) 135% of the maximum number of Series A Warrant Shares issued and issuable pursuant to the Series A Warrants determined in accordance with Section 2(d) of the Series A Warrants
assuming a Reset Price (as defined in the Series A Warrants) equal to the Reset Floor Price (as defined in the Warrants) without giving effect to any limitation on exercise set forth therein and (y) 100% of the maximum number of Series B Warrant
Shares issued and issuable pursuant to the Series B Warrants assuming that the Maximum Eligibility Number (as defined in the Series B Warrant) is determined based on a Reset Price (as defined in the Series B Warrants) equal to the Reset Floor
Price without giving effect to any limitation on exercise set forth therein, and (ii) thereafter, the sum of at least (x) 135% of the maximum number of shares of Rexahn Common Stock as shall from time to time be necessary to effect the exercise
of all of the Series A Warrants then outstanding, without giving effect to any limitation on exercise set forth therein and (y) 100% of the maximum number of shares of Rexahn Common Stock as shall from time to time be necessary to effect the
exercise of all of the Series B Warrants then outstanding, without giving effect to any limitation on exercise set forth therein (the foregoing clauses (i) and (ii), as applicable, the “Required Reserve Amount”)
(as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events occurring after the date hereof). Upon exercise of the Warrants in accordance with
the Warrants, the Warrant Shares when issued will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Rexahn Common Stock. Assuming the accuracy of each of the representations and warranties set forth in Section 2 of this Agreement, the offer and issuance by Rexahn of the Warrants and the
Warrant Shares is exempt from registration under the 1933 Act.
(d) No Conflicts. The execution, delivery and performance of the Rexahn Transaction Documents by Rexahn and the consummation by Rexahn of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Warrants and reservation for issuance and issuance of the Warrant Shares) will not (i) as of (x) the date hereof, subject to the Rexahn Required Stockholder Approvals, and (y) as of the
Closing Date, result in a violation of the Rexahn Certificate of Incorporation (as defined below) or Rexahn Bylaws (as defined below) or other organizational documents of Rexahn or any of the Rexahn Subsidiaries, any capital stock of Rexahn or any
of the Rexahn Subsidiaries or the articles of association or bylaws of Rexahn or any of the Rexahn Subsidiaries or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any
respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Rexahn or any of the Rexahn Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of the Principal Market and including all applicable foreign, federal, state laws, rules and
regulations) applicable to Rexahn or any of the Rexahn Subsidiaries or by which any property or asset of Rexahn or any of the Rexahn Subsidiaries is bound or affected; except, in the case of clauses (ii) and (iii) above, as would not have or
reasonably be expected to result in a Rexahn Material Adverse Effect.
(e) Consents. Other than from (i) approval of the Principal Market to list additional shares on the Principal Market and (ii) the Rexahn Required Stockholder Approvals (in each
case, as of the date hereof), Rexahn is not required to obtain any consent from, authorization or order of, or make any filing or registration with (other than the filing with the SEC of one or more Registration Statements in accordance with the
requirements of the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies or the filing of an amended and restated certificate of incorporation following receipt of the Rexahn
Required Stockholder Approvals to increase the number of authorized shares of Rexahn Common Stock pursuant to the reverse stock split as contemplated in the Draft Merger Agreement and change the name of Rexahn to “Ocuphire Pharma, Inc.”), any
court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its obligations under or contemplated by the Rexahn Transaction Documents, in each case, in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which Rexahn is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the Closing Date (or in the case
of filings detailed above, will be made timely after the Closing Date), and Rexahn has not received written notice from any governmental entity which would reasonably be expected to prevent Rexahn from obtaining or effecting any of the
registration, application or filings contemplated by the Rexahn Transaction Documents. Except as disclosed in the SEC Documents, Rexahn is not in violation of the listing requirements of the Principal Market and has not received written notice
from the Principal Market which would reasonably be expected to lead to delisting or suspension of the Rexahn Common Stock in the foreseeable future. The issuance by Rexahn of the Warrants and Warrant Shares shall not have the effect of delisting
or suspending the Rexahn Common Stock from the Principal Market.
(f) No General Solicitation. Neither Rexahn, nor any of the Rexahn Subsidiaries or their affiliates, nor any Person acting on its or their behalf, has engaged in any form of
general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities.
(g) Application of Takeover Protections; Rights Agreement. Rexahn and its board of directors have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, interested stockholder, business combination (including, without limitation, under Section 203 of the DGCL), poison pill (including, without limitation, any distribution under a rights agreement) or other similar anti-takeover
provision under the Rexahn amended and restated certificate of incorporation, as amended and as in effect on the date hereof (the “Rexahn Certificate of Incorporation”), and the Rexahn restated and amended
bylaws, as in effect on the date hereof (the “Rexahn Bylaws”) or other organizational documents or the laws of the jurisdiction of its formation which is or could become applicable to any Buyer as a result of
the transactions contemplated by this Agreement, including, without limitation, Rexahn’s issuance of the Securities and any Buyer’s ownership of the Securities.
(h) Foreign Corrupt Practices. Neither Rexahn, nor any of the Rexahn Subsidiaries, nor any director, officer, agent, employee or other Person acting on behalf of Rexahn or any of
the Rexahn Subsidiaries has, in the course of its actions for, or on behalf of, Rexahn or any of the Rexahn Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA as amended; or (iv) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
(i) Equity Capitalization. As of the date hereof, the authorized capital stock of Rexahn consists of (i) 75,000,000 shares of Rexahn Common Stock, of which as of the date hereof,
4,019,141 are issued and outstanding, 285,460 shares are reserved for issuance pursuant to Rexahn’s stock option plans, of which 146,224 shares are subject to outstanding Rexahn options granted under the Rexahn stock plans and warrants to purchase
1,921,489 shares of Rexahn Common Stock and (ii) 10,000,000 shares of preferred stock, 0.0001 par value per share, of which no shares are issued and outstanding as of the date hereof. No Rexahn Common Stock are held in treasury. All of such
outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and nonassessable.
(j) Investment Company Status. Neither Rexahn nor any of the Rexahn Subsidiaries is an “investment company,” an affiliate of an “investment company,” a company controlled by an
“investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(k) Shell Company Status. Rexahn is not, and has never been, an issuer identified in, or subject to, Rule 144(i)(1) of the 1933 Act.
(l) Compliance with Anti-Money Laundering Laws. The operations of Rexahn and the Rexahn Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and all other
applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Rexahn or any of the Rexahn Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of Rexahn, threatened.
(m) No Conflicts with Sanctions Laws. Neither Rexahn nor any of
the Rexahn Subsidiaries, nor any director, officer, employee, agent, affiliate or other Person associated with or acting on behalf of Rexahn or any of the Rexahn Subsidiaries or any of their affiliates is, or is directly or indirectly owned or controlled by, a Person that is currently the subject or the target of any sanctions administered or enforced by the U.S.
government (including, without limitation, the Sanctions Laws; neither Rexahn, nor any of Rexahn Subsidiaries, any director, officer, employee, agent, affiliate or other Person associated with or acting on behalf of Rexahn or any of the
Rexahn Subsidiaries or their affiliates, is located, organized or resident in a country or territory that is the subject or target of a comprehensive embargo or Sanctions Laws prohibiting trade
with the country or territory, including, without limitation, a Sanctioned Country); Rexahn maintains in effect and enforces policies and procedures designed to ensure compliance by Rexahn and the Rexahn Subsidiaries with applicable
Sanctions Laws; neither Rexahn, nor any of the Rexahn Subsidiaries, any director, officer, employee, agent, affiliate or other Person associated with or acting on behalf of Rexahn or any
of the Rexahn Subsidiaries or their affiliates, acting in any capacity in connection with the operations of Rexahn or the Rexahn Subsidiaries, conducts any business with or for the benefit
of any Blocked Person or engages in making or receiving any contribution of funds, goods or services to, from or for the benefit of any Blocked Person, or deals in, or otherwise engages in any transaction relating to, any property or interests in
property blocked or subject to blocking pursuant to any applicable Sanctions Laws; no action of Rexahn or any of the Rexahn Subsidiaries
in connection with (i) the execution, delivery and performance of this Agreement and the other Rexahn Transaction Documents, (ii) the issuance and sale of the Securities, or (iii) the direct or indirect use of proceeds from the Securities or the
consummation of any other transaction contemplated hereby or by the other Rexahn Transaction Documents or the fulfillment of the terms hereof or thereof, will result in the proceeds of the transactions contemplated hereby and by the other Rexahn
Transaction Documents being used, or loaned, contributed or otherwise made available, directly or indirectly, to any Rexahn Subsidiary, joint venture partner or other Person, for the purpose of (i) unlawfully funding or facilitating any
activities of or business with any Person that, at the time of such funding or facilitation, is the subject or target of Sanctions Laws, (ii) unlawfully funding or facilitating any activities of or business in any Sanctioned Country or (iii) in
any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions Laws. For the past five (5) years, Rexahn and the
Rexahn Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any Person that at the time of the dealing or transaction is or was the
subject or the target of Sanctions Laws or with any Sanctioned Country.
(n) Anti-Bribery. Neither Rexahn nor any of the Rexahn Subsidiaries has made any contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in violation of any law which violation is required to be disclosed. Neither Rexahn, nor any of the Rexahn Subsidiaries or any of their affiliates, nor any director, officer, agent, employee or
other Person associated with or acting on behalf of Rexahn, the Rexahn Subsidiaries or any of their affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or employee, to any employee or agent of a private entity with which Rexahn or the Rexahn Subsidiaries does or seeks to do business or to foreign or
domestic political parties or campaigns, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
or any applicable provision of the FCPA, the U.K. Bribery Act 2010, or the Anti-Bribery Laws, (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or anything else of value, directly or indirectly, to
any Person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage or (v)
otherwise made any offer, bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment; Rexahn and the Rexahn Subsidiaries have instituted and have maintained, and will continue to maintain, policies and procedures
reasonably designed to promote and achieve compliance with the laws referred to in (iii) above and with this representation and warranty; none of Rexahn, nor the Rexahn Subsidiaries or any of their affiliates will directly or indirectly use the
proceeds of the Convertible Securities or Options or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other Person for the purpose of financing or facilitating any activity that would
violate the laws and regulations referred to in (iii) above; there are, and have been, no allegations, investigations or inquiries with regard to a potential violation of any Anti-Bribery Laws by Rexahn, the Rexahn Subsidiaries or their affiliates,
or any of their respective current or former directors, officers, employees, stockholders, representatives or agents, or other Persons acting or purporting to act on their behalf.
5. COVENANTS.
(a) Commercially Reasonable Efforts. Each party shall use its commercially reasonable efforts timely to satisfy each of the covenants and the conditions to be satisfied by it as
provided in Sections 7 and 8 of this Agreement.
(b) Form D and Blue Sky. Each of Ocuphire and Rexahn agrees to file a Form D with respect to the Common Shares and Warrants, respectively, as required under Regulation D and to
provide a copy thereof to each Buyer promptly after such filing. Ocuphire shall, on or before the Closing Date, take such action as it shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Securities for
sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so
taken to the Buyers on or prior to the Closing Date. Rexahn shall, after the closing of the Merger and on or before the Warrant Closing Date, take such action as it shall reasonably determine is necessary in order to obtain an exemption for or to
qualify the Securities for sale to the Buyers at the Warrant Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide
evidence of any such action so taken to the Buyers on or prior to the Warrant Closing Date. Each of Ocuphire and Rexahn shall make all filings and reports relating to the offer and sale of the Securities required under applicable securities or
“Blue Sky” laws of the states of the United States following the Closing Date.
(c) Reporting Status. From the closing of the Merger until the date on which the Investors (as defined in the Registration Rights Agreement) shall have sold all of the Warrant
Shares and none of the Warrants are outstanding (such period of time, the “Reporting Period”), Rexahn shall use its commercially reasonable efforts to timely file all reports required to be filed with the SEC
pursuant to the 1934 Act, and Rexahn shall not terminate its status as an issuer required to file reports under the 1934 Act unless the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination,
and Rexahn shall take all actions reasonably necessary to maintain its eligibility to register the Warrant Shares for resale by the Investors on Form S-3 or, if it is ineligible to use Form S-3, on Form S-1.
(d) Exchange of Shares.
(i) Promptly following the issuance of the Common Shares on the Closing Date, the Common Shares shall be exchanged for shares of Rexahn Common Stock (the “Exchange
Shares”) at the completion of the Merger on the terms described in that certain Agreement and Plan of Merger and Reorganization, to be executed on the date hereof, by and among Rexahn, Razor Merger Sub, Inc. and Ocuphire (as may be
amended, supplemented or modified from time to time by the parties thereto, the “Executed Merger Agreement”), the most recent draft thereof as of the date of this Agreement provided to such Buyer for such
Buyer’s review (the “Draft Merger Agreement”). Such Exchange Shares shall be delivered to each Buyer by crediting to such Buyer’s or its designee’s balance account within (i) with respect to the Exchange
Shares being issued in exchange of the Initial Common Shares, two (2) Trading Days following the Closing Date and (ii) with respect to the Exchange Shares being issued in exchange of any Additional Common Shares, on the applicable Additional
Exchange Shares Delivery Date. Notwithstanding anything to the contrary contained herein, in no event will any Exchange Shares be delivered with any restrictive legends or any restrictions or limitations on resale by the Buyers, except to the
extent any Buyer is then an affiliate of Rexahn. If Rexahn and/or the Transfer Agent requires any legal opinions with respect to the delivery of any Exchange Shares without restrictive legends or the removal of any such restrictive legends, Rexahn
agrees to cause at its expense its legal counsel to issue any such legal opinions.
(ii) So long as such Buyer has paid its Purchase Price hereunder and has complied with the requirements set forth in Section 1.8 of the Merger Agreement, as applicable, if Rexahn shall
following the completion of the Merger fail for any reason or for no reason to credit such Buyer’s or its designee’s balance account with DTC within two (2) Trading Days following the Closing Date (the “Merger
Delivery Date”) the applicable Exchange Shares with respect to the Initial Common Shares to which such Buyer is entitled hereunder (a “Merger Delivery Failure”), then, in addition to all other
remedies available to such Buyer, Rexahn shall pay in cash to such Buyer on each day after such Merger Delivery Date that Rexahn shall fail to credit such Buyer’s or its designee’s balance account with DTC for the number of shares of Rexahn Common
Stock to which such Buyer is entitled pursuant to the exchange of the Initial Common Shares for Rexahn Common Stock pursuant to the Merger, an amount equal to 2.0% of the product of (A) the number of Exchange Shares with respect to the Initial
Common Shares not delivered to such Buyer on or prior to the Merger Delivery Date and to which the Buyer is entitled, and (B) any trading price of the Rexahn Common Stock selected by the Buyer in writing as in effect at any time during the period
beginning on the Merger Delivery Date and ending on the date Rexahn makes the applicable cash payment, and if on or after such Trading Day such Buyer (or any Person in respect of, or on behalf, of such Buyer) purchases (in an open market
transaction or otherwise) shares of Rexahn Common Stock related to the applicable Merger Delivery Failure, then, in addition to all other remedies available to such Buyer, Rexahn shall, within two (2) Trading Days after such Buyer’s request and in
such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Rexahn Common Stock so purchased (the “Merger Buy-In Price”), at which point Rexahn’s obligation to credit such Buyer’s or its designee’s balance account with DTC for such shares of Rexahn Common Stock shall terminate, or (ii) promptly honor its
obligation to credit such Buyer’s or its designee’s balance account with DTC and pay cash to such Buyer in an amount equal to the excess (if any) of the Merger Buy-In Price over the product of (A) such number of shares of Rexahn Common Stock,
multiplied by (B) any trading price of the Rexahn Common Stock selected by such Buyer in writing as in effect at any time during the period beginning on the Merger Delivery Date and ending on the date of such delivery and payment under this Section
5(d)(ii). Nothing shall limit any Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to Rexahn’s failure
to timely electronically deliver shares of Rexahn Common Stock as required pursuant to the terms hereof.
(e) Use of Proceeds.Ocuphire shall use the proceeds from the sale of the Securities for (i) expenses incurred by Ocuphire in connection with the Merger, (ii) operating expenses
incurred by Ocuphire in the operation of its business, (iii) payment of Ocuphire’s obligations arising under that certain Apexian Sublicense Agreement, dated as of January 21, 2020, by and between Ocuphire and Apexian Pharmaceuticals, Inc., (iv)
the payment of any obligations owed to the holders of the Parent Warrants (as defined in the Draft Merger Agreement) that may be triggered as a result of the consummation of the Merger, (v) working capital and (vi) general corporate purposes,
provided however, Ocuphire shall not use the proceeds from the sale of the Securities to pay (y) any outstanding obligations for money borrowed by Ocuphire or (z) any outstanding obligations of Ocuphire relating to any letter of credit, banker’s
acceptance or similar credit transaction.