DERMTECH, INC. SERIES C PREFERRED SECURITIES PURCHASE AGREEMENT September 26, 2017

Exhibit 10.19

DERMTECH, INC.

SERIES C PREFERRED SECURITIES PURCHASE AGREEMENT

September 26, 2017

TABLE OF CONTENTS


		Page
1. Purchase and Sale of Securities			1

1.1	Sale and Issuance of Securities		1
1.2	Closing; Delivery		2
1.3	Additional Closings		2
1.4	Second Tranche Investment		3
1.5	Use of Proceeds		3
1.6	Certain Defined Terms		3

2. Representations and Warranties of the Company			4

2.1	Organization, Good Standing and Qualification		4
2.2	Capitalization		4
2.3	Subsidiaries		6
2.4	Authorization		6
2.5	Valid Issuance of Securities		6
2.6	Governmental Consents		7
2.7	Litigation		7
2.8	Intellectual Property		7
2.9	Compliance with Other Instruments		8
2.10	Disclosure		8
2.11	No Conflict of Interest		9
2.12	Title to Property and Assets		9
2.13	Financial Statements		9
2.14	Changes		10
2.15	Employee Benefit Plans		11
2.16	Tax Returns and Payments		11
2.17	Insurance		11
2.18	Labor Agreements and Actions		11
2.19	Confidential Information and Invention Assignment Agreements		12
2.20	Permits		12
2.21	Real Property Holding Corporation		12
2.22	Corporate Documents		12
2.23	Agreements; Actions		12
2.24	Certain Transactions		13

3. Representations and Warranties of the Purchasers			13

3.1	Authorization		13
3.2	Purchase Entirely for Own Account		14
3.3	Disclosure of Information		14
3.4	Restricted Securities		14
3.5	No Public Market		14
3.6	Legends		14
3.7	Accredited Investor		15

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TABLE OF CONTENTS

(continued)


		Page
3.8	Foreign Investors		15
3.9	Investment and Tax Advice		15
3.10	No General Solicitation		15
3.11	No “Bad Actor” Disqualification Events		16

4. Conditions of the Purchasers’ Obligations at Closing			16

4.1	Representations and Warranties		16
4.2	Performance		16
4.3	Compliance Certificate		16
4.4	Qualifications		16
4.5	Investors’ Rights Agreement		16
4.6	Voting Agreement		16
4.7	Right of First Refusal and Co-Sale Agreement		16
4.8	Restated Certificate		16
4.9	Secretary’s Certificate		17
4.10	Proceedings and Documents		17
4.11	Opinion of Company Counsel		17
4.12	Indemnification Agreements		17
4.13	Management Rights Letter		17

5. Conditions of the Company’s Obligations at Closing			17

5.1	Representations and Warranties		17
5.2	Performance		17
5.3	Qualifications		17
5.4	Investors’ Rights Agreement		17
5.5	Voting Agreement		17

6. Miscellaneous			18

6.1	Survival of Warranties		18
6.2	Transfer; Successors and Assigns		18
6.3	Governing Law		18
6.4	Counterparts; Facsimiles		18
6.5	Titles and Subtitles		18
6.6	Notices		18
6.7	Finder’s Fee		18
6.8	Fees and Expenses		19
6.9	Attorney’s Fees		19
6.10	Amendments and Waivers		19
6.11	Severability		19
6.12	Delays or Omissions		19
6.13	Entire Agreement		19
6.14	Corporate Securities Law		20
6.15	Exculpation Among Purchasers		20
6.16	Waiver of Potential Conflicts of Interest		20

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DERMTECH, INC.

SERIES C PREFERRED SECURITIES PURCHASE AGREEMENT

This Series C Preferred Securities Purchase Agreement (this “Agreement”) is made as of the 26^th day of September, 2017 by and among DermTech, Inc., a Delaware corporation (the “Company”) and the investors listed on Exhibit A attached hereto (each a “Purchaser” and together the “Purchasers”).

RECITALS

WHEREAS, certain of the Purchasers entered into that certain Series C Preferred Securities Purchase Agreement dated October 7, 2016 (the “Prior Agreement”), by and between the Company and the Purchasers listed on Exhibit A thereto (the “Existing Investors”).

WHEREAS, the Company and the Existing Investors desire to amend and restate the Prior Agreement and to enter into this Agreement with the Purchasers.

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

1. Purchase and Sale of Securities.

1.1 Sale and Issuance of Securities.

(a) Authorization/Restated Certificate. The Company has adopted and filed with the Secretary of State of the State of Delaware the Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit B (the “Restated Certificate”).

(b) Issuance of Series C Preferred Stock. Subject to the terms and conditions of this Agreement, each Purchaser agrees, severally and not jointly, to purchase at the Closing (as defined below) and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series C Preferred Stock, par value $0.001 per share (“Series C Preferred Stock”), set forth opposite each such Purchaser’s name on Exhibit A attached hereto at a purchase price of $5.54 per share (as adjusted for stock splits, reverse stock splits, stock dividends, recapitalizations, reclassification, combinations and the like with respect to such shares). The shares of Series C Preferred Stock issued to the Purchasers pursuant to this Agreement shall be hereinafter referred to as the “Stock.”

(c) Issuance of Common Warrants. The Company shall issue to each Investor who purchases at least $1,000,000 of Series C Preferred Stock in a single Closing (defined below) (a “Major Purchaser”) a Common Warrant in substantially the form attached hereto as Exhibit C (the “Common Warrant”) to purchase up to the number of shares of the Company’s Common Stock (the “Common Warrant Shares”) equal to twenty percent (20%) of the number of shares of Series C Preferred Stock purchased by such Major Purchaser pursuant to Section 1.1(b). For purposes of clarify, any Major Purchaser that participates in multiple

Closings will receive additional Common Warrants in respect of each Closing in amount equal to twenty percent (20%) of the number of shares of Series C Preferred Stock purchased by such Major Purchase in such Closing. The Common Warrants shall be exercisable at a price per share equal to $5.54, subject to adjustment in certain circumstances. The Company’s agreement with each Major Purchaser is a separate agreement, and the issuance of a Common Warrant to each Major Purchaser is a separate issuance. For the purposes of determining whether an Investor is a Major Purchaser under this paragraph, Investors may aggregate shares purchased by such Investors’ affiliates in the applicable Closing, provided that the Common Warrant to be issued to such affiliates will be allocated to such aggregating affiliates in proportion to each such Investor’s purchased shares in relation to the aggregate amount.

1.2 Closing; Delivery.

(a) The initial purchases and sales of the Stock and the Common Warrants between October 17, 2016 and July 31, 2017 at which time the Company issued and 1,416,068 shares of Series C Preferred Stock and issued 264,780 Warrants (which time and place are designated as the “Initial Closing”). The term “Closing” shall apply to the Initial Closing, as well as each subsequent closing unless otherwise specified. The Company held subsequent Closings on the dates and for the amounts shown on Exhibit A attached hereto (each a “Previous Subsequent Closing” and together with the Initial Closing, the “Previous Closings”).

(b) The first additional purchase and sale of the Stock and the Common Warrants after the Previous Closings shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.C. located at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Closing Location”), on September 26, 2017, or at such other time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time and place are designated as the “First Subsequent Closing”).

(c) At each Closing, or shortly thereafter, the Company’s Transfer Agent, American Stock Transfer & Trust (AST) shall deliver to each Purchaser a certificate representing the Stock being purchased thereby against payment of the purchase price therefor by check payable to the Company or by wire transfer to a bank account designated by the Company.

(d) Promptly after the Closing, the Company shall deliver to each Major Purchaser an executed Common Warrant to purchase up to the number of Common Warrant Shares equal to twenty (20%) of the number of shares of Series C Preferred Stock purchased by such Major Purchaser in such Closing subject to and in accordance with Section 1.1(c) above.

1.3 Additional Closings. After the First Subsequent Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement, up to (i) an aggregate of 2,800,000 shares (less any shares of Series C Preferred Stock sold in the Previous Closings and the First Subsequent Closing, as well as shares to be sold in the Second Tranche Closing (as defined below) and subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) of Series C Preferred Stock (the “Additional Shares”), and (ii) up to the balance of unissued Common

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Warrants in accordance with Section 1.1(c) above, to existing holders of Preferred Stock or to such other persons or entities as may be approved by the Company in its sole discretion (the “Additional Purchasers”); provided that (i) such subsequent sale is consummated on or before September 30, 2018, and (ii) each Additional Purchaser shall become a party to the Transaction Agreements (as defined below) by executing and delivering a counterpart signature page to each of the Transaction Agreements. Exhibit A to this Agreement shall be updated periodically to reflect the number of Additional Shares purchased at each such Closing and the number of Common Warrant Shares underlying the Common Warrants issued at each such Closing and the parties purchasing such Additional Shares and being issued Common Warrants, if applicable. Each Additional Purchaser that purchases Additional Shares pursuant to this Section 1.3 shall be considered a “Purchaser” for purposes of this Agreement, and any Additional Shares purchased pursuant to this Section 1.3 shall be considered “Stock” for purposes of this Agreement and all other agreements contemplated hereby. Each additional Closing shall be held at the Closing Location or at such other place as the Company and the applicable Additional Purchaser may agree either in writing or orally.

1.4 Second Tranche Investment. In addition to the Stock and Common Warrants purchased in the First Subsequent Closing, RTW Master Fund, LTD and RTW Innovation Master Fund, LTD (together, “RTW”) shall have the right, in their discretion, to purchase up to an additional 270,758 shares of Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) (the “Second Tranche Investment”) on or before September 15, 2018 (the “Second Tranche Closing”) for an aggregate purchase price of $1,499,999.32 (such shares, “Second Tranche Investment Amount”); provided for purposes of clarity that RTW will have no obligation to make the Second Tranche Investment if there has been any Material Adverse Event (as defined below) after the First Subsequent Closing and such Material Adverse Event is still in effect and has not been cured, as determined by RTW in their discretion. As used herein, “Material Adverse Event” shall mean, with respect to the Company, any change or effect that, when taken individually or together with all other changes or effects, is or could reasonably be expected to be materially adverse to the business, operations, assets (intangible and otherwise) of the Company taken as a whole. RTW’s rights to consummate the Second Tranche Investment shall terminate and the Company shall have no further obligation to sell any additional shares of Stock to RTW pursuant to this Section 1.4 upon the earlier to occur of (i) the Company’s sale of shares of its capital stock in a firm commitment underwritten public offering pursuant to a registration statement under the Securities Act, (ii) a Liquidation Transaction as defined in Article IV Section (B)2(c)(i) of the Restated Certificate, as may be amended from time to time, or (iii) September 15, 2018. Notwithstanding anything to the contrary in this Agreement, RTW hereby agree that RTW’s right to consummate the Second Tranche Investment and purchase shares of Stock pursuant to this Section 1.4 shall not be assignable except to an affiliate or limited partner of RTW, and any attempted assignment by RTW shall be void.

1.5 Use of Proceeds. The Company hereby agrees to use the proceeds from the sale of the Stock and Common Warrants for general corporate purposes.

1.6 Certain Defined Terms.

(a) “Affiliate” means, with respect to any specified Person, any other

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Person who, directly or indirectly, controls, is controlled by or is under common control with, such Person, including without limitation any general partner, managing member, officer or director of such Person.

(b) “Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, service ▇▇▇▇ applications, tradenames, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, licenses in, to and under any of the foregoing, and any and all such cases that are owned or used by the Company in the conduct of the Company’s business as now conducted and as presently proposed to be conducted.

(c) “Key Employee” means any executive level employee (including division director and vice president level positions) as well as any employee or consultant who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property.

(d) “knowledge” including the phrase “to the Company’s knowledge” shall mean the actual knowledge after due inquiry of the Company’s officers.

(e) “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

2. Representations and Warranties of the Company. The Company hereby represents and warrants as of the date of each Closing to each Purchaser participating in such Closing that, except as set forth on the Disclosure Schedule attached hereto as Exhibit D which exceptions shall be deemed to be representations and warranties as if made hereunder, the following representations are true and complete. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Section 2, and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.

For purposes of these representations and warranties (except Sections 2.2, 2.3, 2.4, 2.5 and 2.6), the term “Company” shall include any subsidiaries of the Company unless otherwise noted herein.

2.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on the Company’s assets (including intangible assets), liabilities, property, prospects, results of operation, financial condition or business as now conducted or as currently proposed to be conducted (a “Material Adverse Effect”).

2.2 Capitalization. The authorized capital of the Company consists, or will consist, immediately prior to the First Subsequent Closing, of:

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(a) 2,800,000 shares of Preferred Stock, par value $0.001 per share (“Preferred Stock”), all of which have been designated Series C Preferred Stock, 1,416,068 of which are issued and outstanding immediately prior to the First Subsequent Closing. The rights, privileges and preferences of the Series C Preferred Stock are as stated in the Restated Certificate.

(b) 28,800,000 shares of Common Stock, 4,640,200 shares of which are issued and outstanding immediately prior to the First Subsequent Closing. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws

(c) 2,560,008 shares of Common Stock are reserved for issuance under the Company’s 2010 Stock Option Plan (the “Stock Plan”), of which 813,305 shares of Common Stock subject to options are issued and outstanding, and 426,117 shares of Common Stock subject to restricted stock unit awards are issued and outstanding.

(d) 2,332,278 Common Warrants which are issued and outstanding immediately prior to the First Subsequent Closing.

(e) Subsection 2.2 of the Disclosure Schedule sets forth the capitalization of the Company immediately following the First Subsequent Closing including the number of shares of the following: (i) issued and outstanding Common Stock, including, with respect to restricted Common Stock, vesting schedule and repurchase price; (ii) granted stock options, including vesting schedule and exercise price; (iii) shares of Common Stock reserved for future award grants under the Stock Plan; (iv) each series of Preferred Stock; and (v) warrants or stock purchase rights, if any. Except for (A) the conversion privileges of the Shares to be issued under this Agreement, (B) the rights provided in Section 4 of the Investors’ Rights Agreement (as defined below), (C) the securities and rights described in Subsection 2.2 of this Agreement and Subsection 2.2 of the Disclosure Schedule, and (D) the rights provided pursuant to the ROFR Agreement (as defined below), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Series C Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Series C Preferred Stock.

(f) Except as set forth Subsection 2.2 of the Disclosure Schedule, none of the Company’s stock purchase agreements or stock option documents contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events, including without limitation in the case where the Company’s Stock Plan is not assumed in an acquisition. Except as set forth Subsection 2.2 of the Disclosure Schedule, the Company has never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means. Except as set forth in the Restated Certificate, the Company has no obligation (contingent or otherwise) to purchase or redeem any of its capital stock.

(g) The Company has obtained valid waivers of any rights by other

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parties to purchase any of the Securities covered by this Agreement.

(h) Except for as otherwise set forth in the Transaction Agreements, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, for the purchase or acquisition from the Company of any shares of its capital stock.

2.3 Subsidiaries. Except as set forth Subsection 2.3 of the Disclosure Schedule, the Company does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.

2.4 Authorization. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement, the Amended and Restated Investors’ Rights Agreement, in the form attached hereto as Exhibit E (the “Investors’ Rights Agreement”), the Amended and Restated Voting Agreement in the form attached hereto as Exhibit F (the “Voting Agreement”), and the Right of First Refusal and Co-Sale Agreement in the form attached hereto as Exhibit G (the “ROFR Agreement”) and collectively with this Agreement, the Investors’ Rights Agreement, and the Voting Agreement, the “Transaction Agreements”), the Common Stock issuable upon conversion of the Stock (together with the Stock, the Common Warrants, and the Common Warrant Shares, the “Securities”), the Common Warrants, and the Common Warrant Shares has been taken or will be taken prior to the Closing, and the Transaction Agreements, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable federal or state securities laws.

2.5 Valid Issuance of Securities. The Stock that is being issued to the Purchasers hereunder, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, and the Common Warrant Shares, when issued, sold and delivered in accordance with the terms hereof and the provisions of the Common Warrants for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Agreement, the Common Warrants, the Investors’ Rights Agreement, the Voting Agreement, the ROFR Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by a Purchaser. Based in part upon the representations of the Purchasers in this Agreement and subject to the provisions of Section 2.6 below, the Stock and the Common Warrants will be issued in compliance with all applicable federal and state securities laws. The Company covenants that neither it nor any authorized agent acting on its behalf will take any action hereafter that would cause the failure of such compliance. The Common Stock issuable upon conversion of the Stock and issuable upon exercise of the Common Warrants has been duly and validly reserved for issuance, and upon issuance in accordance with the terms of the Restated

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Certificate and Common Warrants, shall be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Agreement, the Common Warrants, the Investors’ Rights Agreement, the Voting Agreement, applicable federal and state securities laws and liens or encumbrances created by or imposed by a Purchaser, and will be issued in compliance with all applicable federal and state securities laws. No “bad actor” disqualifying event described in Rule 506(d)(1)(i) (viii) of the Securities Act is applicable to the Company or any current officer, director, holder of 20% or more of the Company’s stock, or promotor of the Company’s securities in connection with this financing as described in the first paragraph of Rule 506(d)(1).

2.6 Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for filings pursuant to Section 25102(f) of the California Corporate Securities Law of 1968, as amended, and the rules thereunder, other applicable state securities laws and Regulation D of the Securities Act.

2.7 Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or, to the Company’s knowledge, currently threatened against the Company or any officer, director or Key Employee of the Company, or any of its subsidiaries, that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated hereby or thereby, or that might result, either individually or in the aggregate, in any Material Adverse Effect, or any change in the current equity ownership of the Company, nor is the Company aware that there is any basis for the foregoing. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any officer, director or Key Employee of the Company, is a party is named as or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality (in the case of officers, directors or Key Employees, such as would affect the Company). There is no action, suit, proceeding or investigation by the Company or any of its subsidiaries currently pending or which the Company or any of its subsidiaries intends to initiate. The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of any of the Company’s employees, their use in connection with the Company’s business, or any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers.

2.8 Intellectual Property. To its knowledge, the Company owns or possesses sufficient legal rights to all Company Intellectual Property without any conflict with, or infringement of, the rights of others necessary to operate its business as presently conducted. To the Company’s knowledge, no product or service marketed or sold (or proposed to be marketed or sold) by the Company violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Other than with respect to commercially available software products under standard end-user object code license agreements, there are no outstanding options, licenses, agreements, claims, encumbrances, or shared ownership interests of any kind relating to the Company Intellectual Property that is owned by the Company, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect

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to the patents, trademarks, service marks, trade names, copyrights and trade secrets of any other Person. The Company has not received any communications alleging that the Company has violated or, by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other person or entity. To the Company’s knowledge, no employee is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of such employee’s best efforts to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery of this Agreement, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as proposed, will conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated. The Company has obtained and possesses valid licenses to use all of the software programs present on the computers and other software enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business. To the Company’s knowledge, it will not be necessary to use any inventions of any of its employees (or consultants or Persons it currently intends to hire) made prior to their employment by the Company. To the knowledge of the Company, each employee and consultant has assigned to the Company all intellectual property rights he or she owns that are related to the Company’s business as now conducted and as presently proposed to be conducted. Subsection 2.8 of the Disclosure Schedule lists all trademarks, trademark applications, patents and patent applications that are owned by the Company. The Company has not embedded any open source, copyleft or community source code in any of its products generally available or in development, including but not limited to any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement.

2.9 Compliance with Other Instruments. The Company is not in material violation or default of any provisions of the Restated Certificate or its Bylaws or of any instrument, judgment, order, writ, decree, note, indenture, mortgage, lease agreement, purchase order or contract to which it is a party or by which it is bound or, to its knowledge, of any provision of federal or state statute, rule or regulation applicable to the Company. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated hereby or thereby will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, order, writ, decree or contract or an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture or nonrenewal of any material permit or license applicable to the Company.

2.10 Disclosure . The Company and the Purchasers have engaged in a due diligence process, and in connection with that process the Company has made available to the Purchasers all the information reasonably available to the Company that the Purchasers have requested for deciding whether to acquire the Series C Preferred Stock and Common Warrants and all information that the Company believes is reasonably necessary to enable the Purchasers to make such a decision, including certain of the Company’s projections describing its proposed business. Assuming the accuracy of the Purchasers’ representations regarding their sophistication

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with respect to investments in companies similar to the Company and in light of the due diligence process mentioned above, no representation or warranty of the Company contained in this Agreement and the exhibits attached hereto, or any document furnished or to be furnished to Purchasers at the Closings contains any untrue statement of a material fact or, to the Company’s knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. The Company expressly disclaims any representations or warranties regarding the Company’s Private Placement Memorandum, dated June 25, 2015 as updated and amended (the “Memorandum”) and each Investor hereby agrees, acknowledges, and confirms that it is not relying on any statement made in the Memorandum in purchasing securities under the Agreement.

2.11 No Conflict of Interest. The Company is not indebted, directly or indirectly, to any of its officers, directors or employees, or to their respective spouses or children, or to any Affiliate of any of the foregoing, in any amount whatsoever other than in connection with expenses or advances of expenses incurred in the ordinary course of business or relocation expenses of employees. None of the Company’s employees, officers or directors, or any members of their immediate families, or any Affiliate of the foregoing, are, directly or indirectly, indebted to the Company (other than in connection with purchases of the Company’s stock set forth on Subsection 2.11 of the Disclosure Schedule) or, to the Company’s knowledge, have any (i) material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors, (ii) direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company except that officers, directors and/or stockholders of the Company may own stock in (but not exceeding two percent of the outstanding capital stock of) any publicly traded company that may compete with the Company or (iii) financial interest in any contract with the Company. The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation.

2.12 Title to Property and Assets. The Company owns its property and assets free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except such encumbrances and liens which arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets. With respect to the property and assets it leases, the Company is in compliance with such leases and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances.

2.13 Financial Statements. The Company has made available to each Purchaser its unaudited financial statements (including balance sheet, income statement and statement of cash flows) as of December 31, 2016 and for the fiscal year ended December 31, 2015 and its unaudited financial statements (including balance sheet, income statement and statement of cash flows) as of June 30, 2017 and for the three-month period ended June 30, 2017 (collectively, the “Financial Statements”). The Financial Statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated, except that the unaudited Financial Statements may not contain all footnotes or adjustments required by GAAP. The Financial Statements fairly present the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments. Except as set forth in the

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Financial Statements, the Company has no material liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to June 30, 2017 and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under GAAP to be reflected in the Financial Statements, which, in both cases, individually and in the aggregate would not have a Material Adverse Effect. The Company maintains a standard system of accounting established and administered in accordance with U.S. GAAP.

2.14 Changes. Since June 30, 2017, there has not been:

(a) any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have caused a Material Adverse Effect;

(b) any damage, destruction or loss, whether or not covered by insurance, that would have a Material Adverse Effect;

(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and the satisfaction or discharge of which would not have a Material Adverse Effect;

(e) any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;

(f) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;

(g) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;

(h) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;

(i) any resignation or termination of employment of any officer or Key Employee of the Company; and the Company, is not aware of any impending resignation or termination of employment of any such officer or Key Employee;

(j) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;

(k) any loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;

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(l) any declaration, setting aside or payment or other distribution in respect to any of the Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;

(m) any sale, assignment or transfer of any Company Intellectual Property that could reasonably be expected to result in a Material Adverse Effect;

(n) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company;

(o) to the Company’s knowledge, any other event or condition of any character that might have a Material Adverse Effect on the Company; or

(p) any arrangement or commitment by the Company to do any of the things described in this Section 2.14.

2.15 Employee Benefit Plans. Except as set forth Subsection 2.15 of the Disclosure Schedule, the Company does not have any Employee Benefit Plan as defined in the Employee Retirement Income Security Act of 1974.

2.16 Tax Returns and Payments. There are no federal, state, county, local or foreign taxes due and payable by the Company which have not been timely paid. There are no accrued and unpaid federal, state, country, local or foreign taxes of the Company which are due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable federal, state, local or foreign governmental agency. The Company has duly and timely filed all federal, state, county, local and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to taxes for any year except where failure to do so would not, either individually or in the aggregate, result in a Material Adverse Effect.

2.17 Insurance. The Company has in full force and effect fire and casualty insurance policies, with extended coverage in amounts consistent with industry standards, sufficient in amount (subject to reasonable deductibles consistent with industry standards) to allow it to replace any of its properties that might be damaged or destroyed. The Company maintains business interruption insurance with coverage amounts and deductibles consistent with industry standards. The Company has never had any of its insurance policies cancelled, and has not had any material claim made under any of its insurance policies during the past three years.

2.18 Labor Agreements and Actions. The Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the knowledge of the Company threatened, which could have a Material Adverse Effect, nor is the Company aware of any labor organization activity involving its employees. The employment of each officer and employee of the Company is terminable at the will of the Company. To its knowledge, the Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to

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employment. To the Company’s knowledge, none of the Key Employees or directors of the Company has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.

2.19 Confidential Information and Invention Assignment Agreements. Each employee, consultant and officer of the Company has executed an agreement with the Company regarding confidentiality and proprietary information substantially in the form or forms delivered to the counsel for the Purchasers (the “Confidential Information Agreements”). No current or former Key Employee has excluded works or inventions from his or her assignment of inventions pursuant to such Key Employee’s Confidential Information Agreement. Each current and former Key Employee has executed a non-competition and non-solicitation agreement substantially in the form or forms delivered to counsel for the Purchasers. The Company is not aware that any of its employees or consultants is in violation thereof, and the Company will use its best efforts to prevent any such violation.

2.20 Permits. The Company and each of its subsidiaries has all franchises, permits, licenses and any similar authority necessary for the conduct of its business, the lack of which could materially and adversely affect the business, properties, prospects, or financial condition of the Company. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.

2.21 Real Property Holding Corporation. The Company is not a “United States real property holding corporation” within the meaning of the Code and any regulations promulgated thereunder.

2.22 Corporate Documents. The Restated Certificate and Bylaws of the Company are in the form provided to the Purchasers. The copy of the minute books of the Company provided to the Purchasers contains minutes of all meetings of directors and stockholders and all actions by written consent without a meeting by the directors and stockholders since the date of incorporation and accurately reflects in all material respects all actions by the directors (and any committee of directors) and stockholders with respect to all transactions referred to in such minutes.

2.23 Agreements; Actions.

(a) Except for the Transaction Agreements, there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party

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or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $1,500,000 (ii) the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by the Company with respect to infringements of proprietary rights.

(b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $60,000 or in excess of $100,000 in the aggregate, (iii) made any loans or advances to any Person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. For the purposes of (a) and (b) of this Subsection 2.23, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection.

2.24 Certain Transactions. Other than (i) standard employee benefits generally made available to all employees, (ii) standard director and officer indemnification agreements approved by the Board of Directors, (iii) standard employee and consulting agreements in the forms provided to Investors (iv) the purchase of shares of the Company’s capital stock and the issuance of options to purchase shares of the Company’s Common Stock, in each instance, approved in the written minutes of the Board of Directors (previously made available to the Purchasers or their counsel) and (v) as set forth Subsection 2.24 of the Disclosure Schedule, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, consultants or Key Employees, or any Affiliate thereof.

3. Representations and Warranties of the Purchasers. Each Purchaser, severally and not jointly, hereby represents and warrants to the Company that:

3.1 Authorization. Such Purchaser has full power and authority to enter into this Agreement. The Transaction Agreements, when executed and delivered by such Purchaser will constitute valid and legally binding obligations of such Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of a specific performance, injunctive relief, or other equitable remedies, or (b) to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable federal or state securities laws.

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3.2 Purchase Entirely for Own Account. This Agreement is made with the each Purchaser in reliance upon such Purchaser’s representation to the Company, which by such Purchaser’s execution of this Agreement, the Purchaser hereby confirms that the Securities to be acquired by such Purchaser will be acquired for investment for such Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, each Purchaser further represents that such Purchaser does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Securities. The Purchaser has not been formed for the specific purpose of acquiring the Securities.

3.3 Disclosure of Information. Each Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Stock and Common Warrants with the Company’s management and has had an opportunity to review the Company’s facilities. Each Purchaser understands that such discussions, as well as any written information delivered by the Company to such Purchaser, were intended to describe the aspects of the Company’s business which it believes to be material. The foregoing, however, does not limit or modify the representations or warranties of the Company in Section 2 of this Agreement or the right of each Purchaser to rely thereon.

3.4 Restricted Securities. Each Purchaser understands that the Securities have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the each Purchaser’s representations as expressed herein. Each Purchaser understands that the Securities are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, such Purchaser must hold the Securities indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Each Purchaser acknowledges that the Company has no obligation to register or qualify the Securities for resale except as set forth in the Investors’ Rights Agreement. Each Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities, and on requirements relating to the Company which are outside of the Purchasers’ control, and which the Company is under no obligation and may not be able to satisfy.

3.5 No Public Market. Each Purchaser understands that no public market now exists for any of the securities issued by the Company, and that the Company has made no assurances that a public market will ever exist for the Securities.

3.6 Legends. Each Purchaser understands that the Securities, and any securities issued in respect of or exchange for the Securities, may bear one or all of the following legends:

(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE

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BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”

(b) Any legend set forth in the other Agreements.

(c) Any legend required by the Blue Sky laws of any state to the extent such laws are applicable to the shares represented by the certificate so legended.

3.7 Accredited Investor. Each Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

3.8 Foreign Investors. If a Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), such Purchaser hereby represents that he/she/it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities. Such Purchaser’s subscription and payment for and continued beneficial ownership of the Securities, will not violate any applicable securities or other laws of such Purchaser’s jurisdiction.

3.9 Investment and Tax Advice. Each Purchaser (or such Purchaser’s attorney, accountant, purchaser representative and/or tax advisor (collectively, the “Advisors”) has (i) reviewed the merits and risks of the investment in the Company, and (ii) analyzed the income tax and other tax consequences, if any, that may be relevant to the purchase of the Securities. Each Purchaser and its or their Advisors have had a reasonable opportunity to ask questions of and receive answers from members of management of the Company concerning the offer and sale of Securities, and the business, operations, financial condition and prospects of the Company; and all such questions have been answered to the full satisfaction of the Purchaser or its or their Advisors, as deemed necessary to make an informed investment decision with respect to the purchase of the Securities.

3.10 No General Solicitation. Neither the Purchaser, nor any of its or their officers, employees, agents, directors, stockholders or partners has engaged the services of a broker, investment banker or finder to contact any potential investor nor has the Purchaser or any of its or their officers, employees, agents, directors, stockholders or partners, agreed to pay any commission, fee or other remuneration to any third party to solicit or contact any potential investor. Neither the Purchaser, nor any of its or their officers, directors, employees, agents, stockholders or partners has (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Stock and/or the Common Warrants.

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3.11 No “Bad Actor” Disqualification Events. Neither (i) the Purchaser, (ii) any of its 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, nor (iii) any beneficial owner of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by the Purchaser is subject to any Disqualification Event (as defined in Section ), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed reasonably in advance of the Closing in writing in reasonable detail to the Company.

4. Conditions of the Purchasers’ Obligations at Closing. The obligations of each Purchaser to the Company under this Agreement are subject to the fulfillment, on or before each Closing, as applicable, of each of the following conditions, unless otherwise waived by the applicable Purchaser at such Closing:

4.1 Representations and Warranties. The representations and warranties of the Company contained in Section 2 shall be true and correct on and as of each Closing with the same effect as though such representations and warranties had been made on and as of the date of such Closing.

4.2 Performance. The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the applicable Closing.

4.3 Compliance Certificate. The President or Chief Executive Officer of the Company shall deliver to the Purchasers at such Closing a certificate certifying that the conditions specified in Sections 4.1 and 4.2 have been fulfilled.

4.4 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Stock and the Common Warrants pursuant to this Agreement shall be obtained and effective as of such Closing.

4.5 Investors’ Rights Agreement. The Company and each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder) shall have executed and delivered the Investors’ Rights Agreement.

4.6 Voting Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

4.7 Right of First Refusal and Co-Sale Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the ROFR Agreement.

4.8 Restated Certificate. The Company shall have filed the Restated Certificate with the Secretary of State of Delaware on or prior to the Initial Closing, which shall

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continue to be in full force and effect as of the Initial Closing.

4.9 Secretary’s Certificate. The Secretary of the Company shall deliver to the Purchasers at such Closing a certificate certifying (i) the Restated Certificate, (ii) the Bylaws of the Company, (iii) resolutions of the Board of Directors approving the Transaction Agreements and the transactions contemplated hereby and thereby, (iv) resolutions of the stockholders of Company approving the Restated Certificate, (v) the Company’s good standing under the laws of the State of Delaware, and (vi) the Company’s qualification to do business under the laws of the State of California.

4.10 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents may include good standing certificates.

4.11 Opinion of Company Counsel. Each Investor participating in the First Subsequent Closing only shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Company, an opinion, dated as of the Closing, in a form satisfactory to such Investors (the “Legal Opinion”).

4.12 Management Rights Letter. With respect to the First Subsequent Closing only, the Company shall have executed and delivered a management rights letter to RTW in the form agreed to by the Company and RTW.

5. Conditions of the Company’s Obligations at Closing. The obligations of the Company to each Purchaser under this Agreement are subject to the fulfillment, on or before the applicable Closing, of each of the following conditions, unless otherwise waived:

5.1 Representations and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct in all respects on and as of the applicable Closing with the same effect as though such representations and warranties had been made on and as of such Closing.

5.2 Performance. All covenants, agreements and conditions contained in this Agreement to be performed by the Purchasers on or prior to the applicable Closing shall have been performed or complied with in all material respects.

5.3 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Stock and the Common Warrants pursuant to this Agreement shall be obtained and effective as of such Closing.

5.4 Investors’ Rights Agreement. Each Purchaser shall have executed and delivered the Investors’ Rights Agreement.

5.5 Voting Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

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6. Miscellaneous.

6.1 Survival of Warranties. Unless otherwise set forth in this Agreement, the warranties, representations and covenants of the Company and the Purchasers contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the final Closing under this Agreement and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchasers or the Company; provided, however, that except for the representations and warranties of the Company in Sections 2.1, 2.2 2.3, 2.4, 2.5, 2.10, 2.12 and 2.22 (all of which shall survive indefinitely), all other Company representations and warranties shall only survive the final Closing for a period of three (3) years, after which no claims may be brought except those already commenced, those with respect to which the Company has been provided notice, and those which have not been brought in whole or in part due to bad faith or misconduct by or on behalf of the Company.

6.2 Transfer; Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.3 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.

6.4 Counterparts; Facsimiles. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument, and such counterparts may be delivered via facsimile.

6.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.6 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by fax (upon customary confirmation of receipt), or 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page or Exhibit A hereto, or as subsequently modified by written notice, and (a) if to the Company, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, or (b) if to the Purchasers, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ .

6.7 Finder’s Fee. Each Purchaser represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or

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compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which each Purchaser or any of its or their officers, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless each Purchaser from any liability for any commissions or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

6.8 Fees and Expenses. The Company and the Investors shall each pay their own expenses in connection with the transactions contemplated by this Agreement, provided that Company shall pay all legal and administrative costs of RTW for the First Subsequent Closing, including reasonable fees and expenses of RTW’s legal counsel, not to exceed $30,000.

6.9 Attorney’s Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction Agreements, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

6.10 Amendments and Waivers. Any term of this Agreement may be amended, terminated or waived only with the written consent of the Company and the holders of at least a majority of the Common Stock issued or issuable upon conversion of the Stock. Any amendment or waiver effected in accordance with this Section 6.10 shall be binding upon the Purchasers and each transferee of the Stock (or the Common Stock issuable upon conversion thereof), each future holder of all such securities, and the Company.

6.11 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.

6.12 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.13 Entire Agreement. This Agreement, and the documents referred to herein constitute the entire agreement between the parties hereto pertaining to the subject matter hereof,

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and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto are expressly canceled.

6.14 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.

6.15 Exculpation Among Purchasers. Each Purchaser acknowledges that it is not relying upon any person, firm or corporation, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Each Purchaser agrees that no Purchaser nor the respective controlling persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Securities.

6.16 Waiver of Potential Conflicts of Interest. Each of the Investors and the Company acknowledges that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation (“WSGR”) may have represented and may currently represent certain of the Investors. In the course of such representation, WSGR may have come into possession of confidential information relating to such Investors. Each of the Investors and the Company acknowledges that WSGR is representing only the Company in this transaction. Each of the Investors and the Company understands that an affiliate of WSGR may also be an Investor under this Agreement. By executing this Agreement, each of the Investors and the Company hereby acknowledges that they have had an opportunity to ask for information relevant to these disclosures and gives its informed consent to WSGR’s representation of such persons and entities, WSGR’s possession of such confidential information and the participation by WSGR’s affiliate in the financing. Each of the Investors and the Company represents that it has had the opportunity to consult with independent counsel concerning the giving of this waiver.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the undersigned Investors and the Company have caused this Securities Purchase Agreement to be duly executed as of the date first above written.


		DERMTECH, INC.

		By:		/s/ ▇▇▇▇ ▇▇▇▇▇
		Name:		▇▇▇▇ ▇▇▇▇▇
		Title:		Chief Executive Officer

INVESTORS:

The Investors executing the Signature Page in the form attached hereto as Annex A and delivering the same to the Company or its agents shall be deemed to have executed this Agreement and agreed to the terms hereof.

Annex A

Amended and Restated Series C Preferred Securities Purchase Agreement