As filed with the U.S. Securities and Exchange
Commission on July 15, 2024.
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AZITRA,
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
2834 |
|
46-4478536 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
21
Business Park Drive
Branford,
CT 06405
(203)
646-6446 |
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Francisco
D. Salva
21
Business Park Drive
Branford,
CT 06405
(203)
646-6446
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Daniel K. Donahue, Esq.
Greenberg Traurig, LLP
18565 Jamboree Road, Suite 500
Irvine, California 92612
(949) 732-6557 |
Barry Grossman, Esq.
Matthew Bernstein, Esq.
Justin Grossman, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New
York, New York 10105
(212) 370-1300 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer ☐ |
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
|
|
|
Emerging
Growth Company ☒ |
|
|
|
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information contained in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the U.S. Securities and Exchange Commission is declared effective. This preliminary prospectus is not an offer to
sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS |
SUBJECT TO COMPLETION |
DATED JULY 15,
2024 |
Up
to 3,115,265 Units
Each
Unit consisting of one Share of Common Stock or one Pre-Funded Warrant to Purchase one share of Common Stock and Two Class A Warrants
each to Purchase One Share of Common Stock
Up
to 6,230,530 Shares of
Common Stock Underlying the Class A Warrants
Up
to 3,115,265 Shares of Common Stock Underlying Pre-Funded Warrants
Up
to 124,610 Placement Agent Warrants to Purchase Shares of Common Stock
Up
to 124,610 Shares of Common Stock Underlying the Placement Agent Warrants
![](https://www.sec.gov/Archives/edgar/data/1701478/000149315224027219/logo_001.jpg)
We are offering on a best
efforts basis up to 3,115,265 units
(“Units”), each Unit consisting of one share of our common stock, par value $0.0001 per share (the “common
stock”) and two Class A Warrants each to purchase one share of our common stock (each, a “Class A Warrant”) The assumed public
offering price for each Unit is $3.21, which was the last reported sale price of our common stock on the NYSE American on July 11,
2024.
The
Units have no stand-alone rights and will not be certificated or issued as stand-alone securities. Each Class A Warrant
offered hereby is exercisable upon issuance at an initial exercise price of
3.21 (assuming an offering price of $3.21 per Unit) per share of
common stock, and will expire five (5) years from the date of issuance. issuance
On
the date that is 30 calendar days immediately following the date of issuance of the Class A Warrants (the “Reset Date”),
if the Reset Price, as defined below, is less than the exercise price at such time, the exercise price will be decreased to the
Reset Price. “Reset Price” shall mean 100% of the trailing five day VWAP immediately preceding the Reset Date, provided,
that in no event shall the Reset Price be less than 20% of the most recent closing price at the time of execution of the placement agency agreement (subject to adjustment for reverse and forward stock splits, recapitalizations and similar transactions following
the date of the securities purchase agreement). The number of shares of common stock issuable upon exercise of the Class A Warrants
will not be proportionately adjusted in the event of a reset of the exercise price.
We
are also offering to each purchaser of Units whose purchase of shares of our common stock in this offering would otherwise
result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the
election of the holder, 9.99%) of our outstanding shares of common stock immediately following consummation of this offering, the
opportunity to purchase, if the purchaser so chooses, Units consisting of one Pre-Funded Warrant to purchase one share
of common stock, or the Pre-Funded Warrants, and two Class A Warrants. Each Pre-Funded Warrant will
be exercisable for one share of our common stock. The purchase price of each Unit including a Pre-Funded Warrant will equal
the price per Unit of the Units including one share of common stock being sold to the public in this offering, minus $0.0001,
and the exercise price of each Pre-Funded Warrant will be $0.0001 per share. For each Unit including a Pre-Funded Warrant
that we sell, the number of Units including one share of our common stock that we are offering will be decreased on a
one-for-one basis.
The
common stock and Prefunded Warrants can each be purchased in this offering only with the accompanying Class A Warrants that are part of a Unit, but the components of the Units will be immediately separable and will be issued separately in this
offering. See “Description of Securities” in this prospectus for more information.
The
Units, Class A Warrants and the Pre-Funded Warrants will not be listed on the NYSE American and are not
expected to trade in any market; however, we anticipate that the shares of our common stock included in the Units and to be issued
upon exercise of the Class A Warrants and Pre-Funded Warrants will trade on the NYSE American. We
are also registering the shares of common stock issuable upon exercise of the Class A Warrants, Pre-Funded
Warrants and placement agent warrants pursuant to this prospectus.
This offering will
terminate on , 2024, unless
completed sooner or we decide to terminate the offering (which we may do at any time in our discretion) prior to that date. We
expect this offering to be completed not later than two business days following the commencement of sales in this offering (after
the effective date of the registration statement of which this prospectus forms a part), and we will deliver all securities to be
issued in connection with this offering delivery versus payment/receipt versus payment upon receipt by us of investor funds. We will
have one closing for all the securities purchased in this offering. Accordingly, neither we nor the placement agent (as defined below) have made any arrangements to place investor funds
in an escrow account or trust account since the placement agent will not receive investor funds in connection with the sale of the securities
offered hereunder.
Our common stock is listed on
the NYSE American under the symbol “AZTR.” The last reported sale price of our common stock on the NYSE American on
July 11, 2024, was $3.21 per share. The final public offering price per Unit including one share of common stock and
per Unit including one Pre-Funded Warrant will be determined between us and investors based on market conditions at the time of
pricing. The recent market price used throughout this prospectus may not be indicative of the actual public offering price. The actual
public offering price may be based upon a number of factors, including our history and our prospects, the industry in which we operate,
our past and present operating results, the previous experience of our executive officers and the general condition of the securities
markets at the time of this offering. There is no established public trading market for the Units, Class A Warrants or Pre-Funded Warrants and we do not expect a market for any of such securities to develop. We do not intend to
list the Class A Warrants or Pre-Funded Warrants on the NYSE American, any other national securities
exchange or any other trading system. Without an active trading market, the liquidity of the Class A Warrants
and the Pre-Funded Warrants will be limited.
We have engaged Maxim Group LLC,
or the placement agent, to act as our exclusive placement agent in connection with this offering. The placement agent has agreed to use
its reasonable best-efforts to arrange for the sale of the securities offered by this prospectus. The placement agent is not purchasing
or selling any of the securities we are offering and the placement agent is not required to arrange the purchase or sale of any specific
number or dollar amount of securities. We have agreed to pay to the placement agent the placement agent fees set forth in the table below,
which assumes that we sell all of the securities offered by this prospectus. There is no arrangement for funds to be received in escrow,
trust or similar arrangement. There is no minimum offering requirement as a condition of closing of this offering. Because there is no
minimum offering amount required as a condition to closing this offering, we may sell fewer than all of the securities offered hereby,
which may significantly reduce the amount of proceeds received by us, and investors in this offering will not receive a refund in the
event that we do not sell an amount of securities sufficient to pursue our business goals described in this prospectus. We will bear
all costs associated with the offering. See “Plan of Distribution” on page 27 of this prospectus for more information
regarding these arrangements.
We
are an “emerging growth company” under the U.S. federal securities laws and have elected to comply with certain reduced public
company reporting requirements.
Investing
in our securities involves a high degree of risk. See the section titled “Risk Factors” beginning on page 10. Neither
the Securities and Exchange Commission, or the SEC, nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
| |
Per Unit | | |
Total | |
Public offering price(1) | |
$ | | | |
$ | | |
Placement agent fees(2) | |
$ | | | |
$ | | |
Proceeds to us, before expenses(3) | |
$ | | | |
$ | | |
(1) | Assumes
sale of Units including one share of common stock. The public offering price of Units including
one Pre-Funded Warrant will be $3,2099. |
(2) | We
have agreed to pay the placement agent a cash fee equal to 7.0% of the gross proceeds raised
in this offering. We have also agreed to reimburse the placement agent for certain of its
offering-related expenses, including legal fees and other out-of-pocket expenses, up to $100,000.
In addition, we have agreed to issue to the placement agent or its designees warrants to
purchase a number of shares of common stock equal to 4.0% of the shares of common stock made
part of the Units sold in this offering (including the shares of common stock issuable
upon exercise of the Pre-Funded Warrants), at an exercise price of $4.0125 per share,
which represents 125% of the assumed public offering price per share. For more information
about the compensation to be received by the placement agent, see “Plan of Distribution.” |
(3) | Because
there is no minimum number of securities or amount of proceeds required as a condition to
closing in this offering, the actual public offering amount, placement agent fees, and proceeds
to us, if any, are not presently determinable and may be substantially less than the total
maximum offering amounts set forth above. For more information, see “Plan of Distribution.” |
The
delivery to purchasers of the shares of common stock, Pre-Funded Warrants and Class A Warrants in
this offering is expected to be made on or
about , 2024,
subject to satisfaction of certain customary closing conditions.
Maxim
Group LLC
The
date of this prospectus is , 2024.
Table
of Contents
You should rely only
on the information contained in this prospectus or incorporated by reference. We have not authorized any other person to provide
you with information different from or in addition to that contained in this prospectus, and we take no responsibility for any other
information others may give you. If anyone provides you with different or inconsistent information, you should not rely on it. We are
not making an offer to sell these securities in any jurisdiction where an offer or sale is not permitted. Except as otherwise stated,
you should assume that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus
and that the information in any report incorporated by reference is accurate only as of the date of such report. Our business,
financial condition, results of operations and prospects may have changed since such dates.
No
action is being taken in any jurisdiction outside the United States to permit a public offering of our securities or possession
or distribution of this prospectus in that jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside
the United States are required to inform themselves about and to observe any restrictions as to this offering and the distribution of
this prospectus applicable to that jurisdiction.
As
used in this prospectus, unless the context indicates or otherwise requires, “the Company,” “our Company,” “we,”
“us,” and “our” refer to Azitra, Inc., a Delaware corporation.
INDUSTRY
AND MARKET DATA
This prospectus contains or
incorporates by reference observations, statistical data, estimates, and forecasts that are based on independent industry, government
and non-government organization publications or other publicly available information, as well as other information based on our internal
sources. Although we believe that the third-party sources referred to in this prospectus or incorporated by reference are reliable,
estimates as they relate to projections involve numerous assumptions, are subject to risks and uncertainties, and are subject to change
based on various factors, including those discussed under the section titled “Risk Factors” and elsewhere in this
prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent
parties and by us.
Certain
information in the text of this prospectus or incorporated by reference is contained in independent industry government and non-governmental
organizational publications. The sources of these publications are provided below:
|
● |
Stacy
and Belkaid Study, Apollo Stacy and Yasmine Belkaid, Microbial Guardians of Skin Health. Science, 2019 Jan 18;363(6424):227-228.
Doi: 10.1126/science.aat4326. PMID: 30655428 |
|
● |
Oh
Study, Zhou W, Spoto M, Hardy R, Guan C, Fleming E, Larson PJ, Brown JS, Oh J. Host-Specific Evolutionary and Transmission Dynamics
Shape the Functional Diversification of Staphylococcus epidermidis in Human Skin. Cell. 2020 Feb 6;180(3):454-470.e18. doi: 10.1016/j.cell.2020.01.006.
Epub 2020 Jan 30. PMID: 32004459; PMCID |
|
● |
Satoh
Study, Satoh TK, Mellett M, Meier-Schiesser B, Fenini G, Otsuka A, Beer HD, Rordorf T, Maul JT, Hafner J, Navarini AA, Contassot
E, French LE. IL-36γ drives skin toxicity induced by EGFR/MEK inhibition and commensal Cutibacterium acnes. J Clin Invest.
2020 Mar 2;130(3):1417-1430. Doi: 10.1172/JCI128678. PMID: 31805013; PMCID: PMC7269569 |
|
● |
Barbati
Study, Netherton Syndrome in Children: Management and Future Perspectives, Federica Barbati, Mattia Giovannini Teresa Oranges, Lorenzo
Lodi, Simona Barni, Elio Novembre, Ermanno Baldo, Mario Cristofolini, Stefano Stagi, Silvia Ricci, Francesca Mori, Cesare Filippeschi,
Chiara Azzari and Giuseppe Indol; Frontiers in Pediatrics, May 2021 |
|
● |
Sun
Study, Netherton syndrome: A case report and review of the literature, Joannie D. Sun, MD, and Kenneth G. Linden, PhD, MD, International
Journal of Dermatology 2006 |
|
● |
Orphanet,
Netherton Syndrome, Orphanet: Netherton syndrome |
PROSPECTUS
SUMMARY
This
summary highlights certain information appearing elsewhere in this prospectus. Investing in our common stock involves a high degree of
risk. Because it is only a summary, it does not contain all of the information that you should consider before investing in our common
stock and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere
in this prospectus. Before you decide to invest in our common stock, you should read the entire prospectus carefully, including “Risk
Factors” beginning on page 10 and the financial statements and related notes included in this prospectus or incorporated by
reference.
On
July 1, 2024, we effected a 1-for-30 reverse stock split of our issued and outstanding shares of common stock. All historical share
and per share amounts reflected in this prospectus have been adjusted to reflect the reverse stock split.
Our
Company
We
are an early-stage clinical biopharmaceutical company focused on developing innovative therapies for precision dermatology using engineered
proteins and topical live biotherapeutic products. We have built a proprietary platform that includes a microbial library comprised of
approximately 1,500 unique bacterial strains that can be screened for unique therapeutic characteristics. The platform is augmented by
an artificial intelligence and machine learning technology that analyzes, predicts and helps screen our library of strains for drug like
molecules. The platform also utilizes a licensed genetic engineering technology, which can enable the transformation of previously genetically
intractable strains. Our initial focus is on the development of genetically engineered strains of Staphylococcus epidermidis, or S.
epidermidis, which we consider to be an optimal therapeutic candidate species for engineering of dermatologic therapies. The particular
species demonstrates a number of well-described properties in the skin. As of the date of this prospectus, we have identified among our
microbial library over 60 distinct bacterial species that we believe are capable of being engineered to create living organisms or engineered
proteins with significant therapeutic effect.
We
are a pioneer in genetically engineering bacteria for therapeutic use in dermatology. Our goal is to leverage our platforms and internal
microbial library bacterial strains to create new therapeutics that are either engineered living organisms or engineered proteins or
peptides to treat skin diseases. Our initial focus is on the development of our current product candidates, including:
|
● |
ATR-12,
a genetically modified strain of S. epidermidis for treating the orphan disease, Netherton syndrome, a chronic and sometimes
fatal disease of the skin estimated to affect approximately one to nine in every 100,000, but its prevalence may be underestimated
due to misdiagnosis caused by similarities to other skin diseases. We received Pediatric Rare Disease Designation for ATR-12 by the
United States Food and Drug Administration, or FDA, in 2019. In December 2022, we submitted an investigational new drug application,
or IND, for a Phase 1b clinical trial of ATR-12 in Netherton syndrome patients, and on January 27, 2023, we received notification
from the FDA that the “study may proceed” with respect to the proposed Phase 1b clinical trial. We commenced our Phase
1b clinical trial in December 2023 and expect to report initial safety results in the second half of 2024. |
|
● |
ATR-04,
a genetically modified strain of S. epidermidis for treating the papulopustular rash experienced by cancer patients undergoing
epidermal growth factor receptor inhibitor, or EGFRi, targeted therapy. We intend to submit an IND for a Phase 1b clinical trial
in certain cancer patients undergoing EGFRi targeted therapy by mid-2024. Subject to FDA clearance of our IND, we expect to
commence our Phase 1b clinical trial in the fourth quarter of 2024. |
|
● |
ATR-01,
a genetically modified strain of S. epidermidis that expresses an engineered recombinant human filaggrin protein for
treating ichthyosis vulgaris, a chronic, xerotic (abnormally dry), scaly skin disease with an estimated incidence and prevalence
of 1 in 250, which suggests a total patient population of 1.3 million in the United States. We are planning to complete lead optimization
and IND-enabling studies in 2024 to support an IND filing target in the second half of 2025. |
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● |
Two
separate strains of bacterial microbes are being investigated and developed by us and Bayer Consumer Care AG, the consumer products
division of Bayer AG, or Bayer, the international life science company pursuant to a Joint Development Agreement, or JDA, entered
into between the parties in December 2019. Under the terms of the JDA, we are responsible for testing our library of bacterial strains
and their natural products for key preclinical properties. After screening through hundreds of strains, we and Bayer have selected
two particular strains to move forward into further development. Bayer holds the exclusive option to license the patent rights to
these strains. In December 2020, Bayer purchased $8 million of our Series B preferred stock, which converted into 48,324 shares
of our common stock. |
![](https://www.sec.gov/Archives/edgar/data/1701478/000149315224027219/forms-1_001.jpg)
We
also have established partnerships with teams from Carnegie Mellon University and the Fred Hutchinson Cancer Center, or Fred Hutch, two
of the premier academic centers in the United States. Our collaboration with the Carnegie Mellon based team takes advantage of the power
of whole genome sequencing. This partnership is mining our proprietary library of bacterial strains for novel, drug-like peptides and
proteins. The artificial intelligence/machine learning technology developed by this team predicts the molecules made by microbes from
their genetic sequences. The system then compares the predictions to the products actually made through tandem mass spectroscopy and/or
nuclear magnetic resonance imaging to refine future predictions. The predictions can be compared to publicly available 2D and 3D protein
databases to select drug like structures.
We
hold an exclusive, worldwide license from Fred Hutch regarding the use of its patented SyngenicDNA Minicircle Plasmid, or SyMPL, technologies
for all fields of genetic engineering, including to discover, develop and commercialize engineered microbial therapies and microbial-derived
peptides and proteins for skin diseases. We are utilizing our licensed patent rights to build plasmids in order to make genetic transformations
that have never been previously achieved. Our collaboration with Fred Hutch is led by Dr. Christopher Johnston, an expert in microbial
engineering, and the innovator behind the SyMPL technology.
Bayer
Partnership
In
December 2019, we entered into a Joint Development Agreement, or JDA, with Bayer pursuant to which we agreed to the joint development
of certain strains selected from our proprietary microbial library. We and Bayer have agreed to cooperate in the identification and in
vitro and ex vivo characterization of microbial strains for topical formulations, which we intend to develop as potential
over-the-counter cosmetic products. Bayer paid us a one-time payment upon execution of the JDA and has agreed to reimburse us for our
development costs. In October 2021, Bayer expanded the option agreement and paid us a second fee for additional characterization work.
We have granted Bayer an option to acquire an exclusive royalty bearing license for up to six strains subject to development activities
under the JDA, including an exclusive royalty bearing license to any related patent rights. Bayer has an option to acquire the exclusive
license rights for a period of six months following our delivery of the results of the JDA development activities to Bayer. After screening
through hundreds of strains, we and Bayer have selected two particular strains we characterized with in vitro and ex
vivo studies.
In
September 2020, Bayer’s venture capital group, LEAPS by Bayer, purchased $8 million of our Series B preferred stock, which converted
into 48,324 shares of our common stock.
Our
Strategy
Beyond
our three lead product candidates and collaboration with Bayer, our goal is to develop a broad portfolio of product candidates focused
on expanding the application of our platforms for precision dermatology. We believe that we have established a unique position in advancing
the development of biologics for precision dermatology.
We
intend to create a broad portfolio of product candidates for precision dermatology through our development of genetically engineered
proteins selected from our proprietary microbial library of approximately 1,500 unique bacterial strains. Our strategy is as follows:
|
● |
Build
a sustainable precision dermatology company. Our goal is to build a leading precision dermatology company with a sustainable
pipeline of product candidates. To that end, we are focused on rapidly advancing our current pipeline of live biotherapeutic candidates
while actively developing additional product candidates. Each of our current product candidates are proprietary and subject to pending
patent applications. We expect that most of our genetically engineered product candidates we develop will be eligible for patent
protection. |
|
● |
Advance
our lead product candidates, ATR-12 and ATR-04, through clinical trials. We expect to report initial safety results of our
Phase 1b clinical trial for our ATR-12 in Netherton syndrome patients in the second half of 2024 and are currently planning to commence
a Phase 1b trial of our ATR-04 in certain cancer patients undergoing EGFRi therapy in the fourth quarter of 2024. Our Phase 1b
clinical trial for ATR-12 is currently enrolling and we expect to file an IND for ATR-04 by mid- 2024. |
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● |
Broaden
our platform by selectively exploring strategic partnerships that maximize the potential of our precision dermatology programs.
We intend to maintain significant rights to all of our core technologies and product candidates. However, we will continue to evaluate
partnering opportunities in which a strategic partner could help us to accelerate development of our technologies and product candidates,
provide access to synergistic combinations, or provide expertise that could allow us to expand into the treatment of different types
of skin diseases. We may also broaden the reach of our platform by selectively in-licensing technologies or product candidates. In
addition, we will consider potentially out-licensing certain of our proprietary technologies for indications and industries that
we are not pursuing. We believe our genetic engineering techniques and technologies have applicability outside of the field of medicine,
including cosmetics and in the generation of clean fuels and bioremediation. |
|
● |
Leverage
our academic partnerships. We currently have partnerships with investigators at the Fred Hutchinson Cancer Center, Yale University,
Jackson Laboratory for Genomic Medicine, and Carnegie Mellon University. We expect to leverage these partnerships and potentially
expand them or form other academic partnerships to bolster our engineering platforms and expand our research and development pipeline. |
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● |
Expand
on our other potential product candidates. Beyond our three lead product candidates, our goal is to develop a broad portfolio
of product candidates focused on expanding the application of our platforms for precision dermatology. We have a proprietary platform
for discovering and developing therapeutic products for precision dermatology. Our platform is built around a microbial library comprised
of approximately 1,500 unique bacterial strains to allow screening for unique therapeutic characteristics and utilizes a microbial
genetic technology that analyzes, predicts and engineers the proteins, peptides and molecules made by skin microbes. Our ability
to genetically engineer intractable microbial species is uniquely leveraged by our exclusive license to the SyMPL technology. |
Our
Intellectual Property
As
of the date of this prospectus, we own or exclusively license five issued U.S. patents, 14 pending U.S. patent applications,
three pending PCT application and 58 other foreign patents and patent applications that are important to the development of our
business.
Our
Leadership Team
We
are led by Francisco D. Salva, our chief executive officer, and Travis Whitfill, our co-founder and chief operating officer, who have
more than 35 years of combined experience in the management of biotechnology companies and healthcare investing. Mr. Salva was previously
a co-founder of Acerta Pharma, which was sold to AstraZeneca for approximately $6.3 billion in a staged acquisition in 2016. He also
worked on the turnaround of Pharmacyclics, which subsequently sold to Abbvie for approximately $21 billion in 2015. Before that, Mr.
Salva spent almost a decade in life sciences venture capital. Mr. Whitfill served as associate research scientist and serves as assistant
professor adjunct at Yale University with appointments in the Departments of Pediatrics and Emergency Medicine. He spent nearly a decade
in venture capital as a partner in a biotech-focused venture capital fund, Bios Partners. He has led numerous grant-funded projects,
holds nearly a dozen patents and has co-authored over 60 publications. Our board of directors, or Board, is comprised of renowned group
of senior executives, scientists and investors in the biotechnology industry.
Our
Competitive Strengths
We
are a pioneer in genetically engineering bacteria for therapeutic use in dermatology clinical trials. We have built a proprietary platform
that includes a microbial library comprised of approximately 1,500 unique bacterial strains that are screened for therapeutic characteristics
as well as lead drug candidates. Furthermore, we have exclusively licensed a novel technology, which potentially enables the genetic
transformation of previously intractable bacterial microbes. The history of recombinant protein engineering in biotech has traditionally
been limited to less than 20 species. Our licensed technology opens up the potential to genetically engineer thousands of microbial species
to build proteins and peptides that have never been previously built. Our management team has significant experience in discovering,
developing, manufacturing and commercializing therapeutics. The members of our leadership team have specialized expertise developed at
companies including Pharmacyclics, Acerta Pharma, Castle Creek Biosciences, VYNE Therapeutics (fka Menlo Therapeutics), Revance Therapeutics,
Biogen, Novartis and Connetics Corp.
Our
Market Opportunity
We
believe there are significant market opportunities to capture in each of our addressable markets. The dermatology market itself has shown
considerable growth over the last decade and is predicted to continue to grow. According to Vision Research Reports, the dermatology
drug market surpassed $17 billion in 2021 and is expected to grow at a compound annual growth rate of 8.8% through 2030. Our first product
candidate to emerge from our platform focuses on the orphan indication of Netherton syndrome. Based on the Barbati and Sun Studies, we
believe that this product candidate represents a potential $250 million global sales opportunity by mid-2030. Our second product candidate
focuses on papulopustular rash due to EGFR inhibitors. We believe this product candidate represents a potential $1 billion global sales
opportunity by 2030. The diseases we intend to target are well characterized, often by a monogenic genetic mutation. Additionally, the
era of genomic sequencing has ushered in unprecedented progress in genetic testing. The defined molecular pathophysiology of over 100
rare skin diseases has now been defined.
Our
Corporate Information
We
were incorporated under the laws of the state of Delaware on January 2, 2014. Our principal executive offices are located at 21 Business
Park Drive, Branford, Connecticut 06405, and our telephone number is (203) 646-6446. Our website address is www.azitrainc.com. The information
contained in, or accessible through, our website is not incorporated by reference into this prospectus, and you should not consider any
information contained in, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase
our common stock or Pre-Funded Warrants.
We
own U.S. and foreign registered trademarks, including our company name. All other trademarks or trade names referred to in this prospectus
are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus are referred to
without the symbols ® and ™, but such references should not be construed as any indication that their respective owners will
not assert, to the fullest extent under applicable law, their rights thereto.
Additional Information
For additional
information related to our business and operations, please refer to the reports incorporated herein by reference, including our Annual
Report on Form 10-K for the year ended December 31, 2023 as filed with the SEC on March 15, 2024 and the amendment thereto filed with
the SEC on April 29, 2024, which we collectively refer to as the 2023 Form 10-K, as described in the section entitled “Incorporation
of Certain Documents by Reference” in this prospectus.
Implications
of Being an Emerging Growth Company
The
Jumpstart Our Business Startups Act, or the JOBS Act, was enacted in April 2012 with the intention of encouraging capital formation in
the United States and reducing the regulatory burden on newly public companies that qualify as “emerging growth companies.”
We are an emerging growth company within the meaning of the JOBS Act. As an emerging growth company, we may take advantage of certain
exemptions from various public reporting requirements, including:
|
● |
the
requirement that our internal control over financial reporting be attested to by our independent registered public accounting firm
pursuant to Section 404 of the Sarbanes-Oxley Act of 2002; |
|
● |
certain
requirements related to the disclosure of executive compensation in this prospectus and in our periodic reports and proxy statements; |
|
● |
the
requirement that we hold a nonbinding advisory vote on executive compensation and any golden parachute payments; and |
|
● |
the
ability to delay compliance with new or revised financial accounting standards until private companies are required to comply with
the new or revised financial accounting standard. |
We
may take advantage of the exemptions under the JOBS Act discussed above until we are no longer an emerging growth company. We will remain
an emerging growth company until the earliest to occur of (1) the last day of the fiscal year in which we have $1.235 billion or more
in annual revenue; (2) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities
held by non-affiliates; (3) the date on which we have issued, in any three-year period, more than $1.0 billion in non-convertible debt
securities; or (4) the last day of the fiscal year ending after the fifth anniversary of the IPO.
We
may choose to take advantage of some, but not all, of the available benefits under the JOBS Act. We have chosen to take advantage of
all of the other exemptions discussed above. Accordingly, the information contained herein and in our subsequent filing with the SEC
may be different than the information you receive from other public companies in which you hold stock.
For
certain risks related to our status as an emerging growth company, see the disclosure elsewhere in this prospectus under “Risk
Factors—Risks Related to this Offering and Owning Our Common Stock—We are an ‘emerging growth company’ under
the JOBS Act and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common
stock less attractive to investors.”
Implications
of Being a Smaller Reporting Company
Additionally,
we are a “smaller reporting company” as defined in Rule 10(f)(1) of Regulation S-K. Smaller reporting companies may take
advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements.
We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our common stock held
by non-affiliates equals or exceeds $250 million as of the end of that year’s second fiscal quarter, or (2) our annual revenues
equaled or exceeded $100 million during such completed fiscal year and the market value of our common stock held by non-affiliates equals
or exceeds $700 million as of the end of that year’s second fiscal quarter.
THE
OFFERING
Issuer |
Azitra,
Inc. |
|
|
Units to be Offered |
3,115,265 Units based
on assumed public offering price of $3.21 per Unit. Each Unit will consist of one share of common stock (or Pre-Funded Warrant
to purchase one share of our common stock in lieu thereof), two Class A Warrants each to purchase one share of common stock. The Units have no stand-alone rights and will not be certificated or issued as stand-alone securities.
The shares of common stock and Pre-Funded Warrants, if any, can each be purchased in this offering only with the accompanying
Class A Warrants as part of Units, but the components of the Units will be immediately separable
and will be issued separately in this offering. |
|
|
Pre-Funded Units to be Offered |
We are also offering
to certain purchasers whose purchase of Units in this offering would otherwise result in the purchaser, together with its affiliates
and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding
common stock immediately following the consummation of this offering, the opportunity to purchase, if such purchasers so choose,
Units including Pre-Funded Warrants to purchase shares of common stock, in lieu of Units including shares of common stock that would
otherwise result in any such purchaser’s beneficial ownership exceeding 4.99% (or, at the election of the purchaser, 9.99%)
of our outstanding common stock. The purchase price of each Unit including a Pre-Funded Warrant will be equal to the price at which
a Unit is sold to the public in this offering, minus $0.0001, and the exercise price of each Pre-Funded Warrant will be $0.0001 per
share. Each Pre-Funded Warrant will be exercisable for one share of our common stock and will be exercisable at any time after its
original issuance until exercised in full, provided that the purchaser will be prohibited from exercising Pre-Funded Warrants for
shares of our common stock if, as a result of such exercise, the purchaser, together with its affiliates and certain related parties,
would own more than 4.99% of the total number of shares of our common stock then issued and outstanding. However, any holder may
increase such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not
be effective until 61 days after such notice to us. |
|
|
Class A Warrants to be Offered |
6,230,530 Class A
Warrants. Each Unit includes one share of common stock and two Class A Warrants. Each Class A Warrant is initially exercisable at a
price of $3.21 per share (assuming an offering price of $3.211 per Unit), however, if on the Reset Date, the
Reset Price is less than the exercise price at such time, the exercise price shall be decreased to the Reset Price. The Class A
Warrants will be exercisable upon issuance and will expire five (5) years from the date of issuance. See “Description of Securities—Class A Warrants.” |
|
|
Common
stock to be outstanding after this offering |
4,075,411 shares of common stock, in each case,
assuming no sales of Pre-Funded Warrants and no exercise of the Class A Warrants being offered
in this offering. To the extent Pre-Funded Warrants are sold, it will reduce the number of shares of common stock that we are offering
on a one-for-one basis. |
|
|
Use
of proceeds |
If we sell all
of the securities offered hereby, we estimate that the net proceeds of this offering based
upon an assumed public offering price of $3.21 per Unit, and after deducting
placement agent fees and estimated offering expenses, will be approximately $8.95
million, assuming no exercise of the Class A Warrants.
However, because this offering is being made on a best-efforts basis, and there is no minimum
offering amount required as a condition to the closing of this offering, we
may sell fewer than all of the securities offered hereby and may receive significantly less
in net proceeds from this offering.
Assuming
that we receive only $5.23 million of net proceeds from this offering (based on
gross offering proceeds of $6 million), we believe that the net proceeds from this offering,
together with our cash on hand, will satisfy our capital needs until November 2024
under our current business plan and assuming that we receive $3.37 million of
net proceeds from this offering (based on gross offering proceeds of $4 million),
we believe that the net proceeds from this offering, together with our cash on hand, will
satisfy our capital needs until October 2024 under our current business plan.
We intend to use the net proceeds from this offering, along with our
existing cash and cash equivalents, for working capital and other general corporate purposes. Following this offering, we will need to
raise additional capital to fund our operations and continue to support our planned development and commercialization activities.
See the section titled “Use of Proceeds” in this prospectus for a more complete description of the intended use of
processed from this offering.
|
|
|
Best Efforts Offering |
We have agreed to issue and sell the securities offered
hereby to the purchasers through the placement agent. The placement agent is not required to buy or sell any specific number or dollar
amount of the securities offered hereby, but will use their reasonable best-efforts to solicit offers to purchase the securities
offered by this prospectus. See “Plan of Distribution” in this prospectus. |
|
|
Trading
market and symbol |
Our
common stock is listed on the NYSE American under the symbol “AZTR.”
We do not intend to list the Pre-Funded Warrants or
the Class A Warrants on the NYSE American or any other national securities exchange or nationally recognized trading
system. Without an active trading market, the liquidity of the Pre-Funded Warrants and Class A Warrants will be limited. |
Risk
factors |
Investing
in our securities involves a high degree of risk. See the section titled “Risk Factors” beginning on page 10 and
the other information in this prospectus for a discussion of the factors you should consider carefully before you decide to invest
in our securities. |
|
|
Lock-up |
We
have agreed, subject to certain exceptions, not to sell, offer, agree to sell, contract to sell, hypothecate, pledge, grant any
option to purchase, make any short sale of, or otherwise dispose of or hedge, directly or indirectly, any shares of our capital
stock or any securities convertible into or exercisable or exchangeable for shares of capital stock, for a period of up to three
months from the close of this offering, without the prior written consent of the placement agent. In addition, our officers and
directors agreed not to sell, offer, agree to sell, contract to sell, hypothecate, pledge, grant any option to purchase, make any
short sale of, or otherwise dispose of or hedge, directly or indirectly, any shares of our capital stock or any securities
convertible into or exercisable or exchangeable for a period of up to two months from the close of this offering, without the
prior written consent of the placement agent. See the section of this prospectus entitled “Plan of Distribution” for
additional information. |
The number of shares of our common
stock to be outstanding after this offering is based on approximately 960,146 shares of our common stock outstanding as of June
30, 2024, and excludes:
|
● |
41,608 shares of our common
stock issuable upon exercise of outstanding options, with a weighted average exercise price of $41.7 per share, granted pursuant
to our 2016 Stock Incentive Plan, or the 2016 Plan, and our 2023 Stock Incentive Plan, or the 2023 Plan; |
|
● |
approximately 33,013 shares of our common stock issuable upon
exercise of outstanding warrants, with a weighted average exercise price of $54.00 per share; |
|
● |
7,456 shares of our common
stock reserved for future grants under our 2016 Plan and 65,333 shares of our common stock reserved for future grants under
our 2023 Plan; |
|
● |
up to 6,230,530 shares
of common stock issuable upon exercise of the Class A Warrants; |
|
● |
up to 3,115,265 shares
of common stock issuable upon exercise of the Pre-Funded Warrants; and |
|
● |
up to 124,610 shares of
common stock issuable upon exercise of the placement agent warrants. |
Unless
we indicate otherwise or unless the context otherwise requires, all information in this prospectus assumes the following:
|
● |
no
exercise of outstanding warrants or options described above; and |
|
● |
No exercise of the Class A Warrants
or Pre-Funded Warrants or placement agent warrants. |
SUMMARY
RISK FACTORS
Our
business is subject to numerous risks, including risks that may prevent us from achieving our business objectives or adversely affect
our business, results of operations, cash flows, and prospects. You should carefully consider the risks discussed below and further discussed
in the section “Risk Factors” immediately following this prospectus summary before investing in our securities.
|
● |
We
are an early-stage clinical biopharmaceutical company with limited operating history; |
|
● |
We
have a history of significant operating losses and anticipate continued operating losses for the foreseeable future; |
|
● |
This offering
is being made on a best-efforts basis and we may sell fewer than all of the securities offered hereby and may receive significantly
less in net proceeds from this offering, which will provide us only limited working capital; |
|
● |
We
expect we will need additional financing to execute our business plan and fund operations, which additional financing may not be
available on reasonable terms, or at all; |
|
● |
The
clinical and commercial utility of our microbial library and genetic engineering platform is uncertain and may never be realized; |
|
● |
Our
product candidates are in early stages of development, and therefore they will require extensive additional preclinical and clinical
testing; |
|
● |
We
will need to grow the size of our organization, and we may experience difficulties in managing this growth; |
|
● |
We
currently have no sales and marketing organization; |
|
● |
We
will be completely dependent for the foreseeable future on third parties to manufacture our product candidates for commercial sale; |
|
● |
Our
business model includes the potential out-licensing of strains from our proprietary microbial library or our product candidates to
other pharmaceutical companies; however, technology licensing in the pharmaceutical industry is a lengthy process and subject to
several risks and factors outside of our control; |
|
● |
Our
business may suffer with the loss of key personnel; |
|
● |
If
product liability lawsuits are brought against us, we may incur substantial liabilities and may be required to limit commercialization
of our product candidates; |
|
● |
Our
business operations could suffer in the event of information technology systems’ failures or security breaches; |
|
● |
We
face significant competition from other biotechnology and pharmaceutical companies targeting medical dermatological indications; |
|
● |
Our
success is entirely dependent on our ability to obtain the marketing approval for our product candidates by the FDA and the regulatory
authorities in foreign jurisdictions in which we intend to market our product candidates, of which there can be no assurance; |
|
● |
Our
clinical trials may fail to demonstrate substantial evidence of the safety and efficacy of our product candidates or any future product
candidates; |
|
● |
Results
of preclinical studies of our product candidates may not be predictive of the results of future preclinical studies or clinical trials; |
|
● |
Even
if we receive regulatory approval for any of our product candidates, we may not be able to successfully commercialize the product
and the revenue that we generate from its sales, if any, may be limited; |
|
● |
Current
and future legislation may increase the difficulty and cost for us to obtain marketing approval of and commercialize our product
candidates and affect the prices we may obtain; |
|
● |
It
is difficult and costly to protect our intellectual property rights, and we cannot ensure the protection of these rights; |
|
● |
Our
product candidates may infringe the intellectual property rights of others, which could increase our costs and delay or prevent our
development and commercialization efforts; |
|
● |
An
active, liquid and orderly trading market for our shares may not develop; |
|
● |
Future
capital raises may dilute your ownership and have other adverse effects on our operations; |
|
● |
The
market price of our shares may be subject to fluctuation and volatility; |
|
● |
If
we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our
financial results or prevent fraud; |
|
● |
There is no market for Class A Warrants or Pre-Funded Warrants and one is not expected to develop; |
|
● |
Holders of the Class A Warrants
and Pre-Funded Warrants purchased in this offering will have no rights as common stockholders until such holders exercise such
warrants and acquire our common stock; |
|
● |
We
ratified certain corporate actions pursuant to Section 204 of the Delaware General Corporate Law, or DGCL; however, there can be
no assurance that claims will not be made to challenge the validity of the ratification or the related corporate actions; and |
|
● |
Our
charter documents and Delaware law may inhibit a takeover that stockholders consider favorable. |
SUMMARY
FINANCIAL DATA
The following tables summarize
our financial data. You should read this summary financial data together with the section entitled “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and our financial statements and related notes that are included
our 2023 Form 10-K and our Quarterly Report on Form 10-Q filed with the SEC on May 9, 2024, or our 2024 Form 10-Q, both of which are
incorporated herein by reference. The financial information as of and for the fiscal years ended December 31, 2023 and 2022
is derived from the audited financial statements that are included in our 2023 Form 10-K. The financial information as of
and for the three months ended March 31, 2024 and 2023 are derived from our unaudited financial statements included in
our 2024 Form 10-Q. The unaudited financial statements were prepared on the same basis as the audited financial statements. Our management
believes that the unaudited financial statements reflect all adjustments necessary for the fair presentation of the financial condition
and results of operations for such periods. Our historical
results are not necessarily indicative of the results that may be expected in the future.
| |
Three
Months Ended March
31, | | |
Years Ended December 31, | |
(in thousands, except share amounts) | |
2024 | | |
2023 | | |
2023 | | |
2022 | |
Statement of Operations Data | |
(unaudited) | | |
(unaudited) | | |
| | |
| |
Revenues | |
$ | — | | |
$ | 113 | | |
$ | 686 | | |
$ | 284 | |
Net loss | |
$ | (2,933 | ) | |
$ | (2,457 | ) | |
$ | (11,284 | ) | |
$ | (10,680 | ) |
Net loss per share, basic and diluted | |
$ | (4.50 | ) | |
| (90.00 | ) | |
$ | (54.90 | ) | |
$ | (38.22 | ) |
| |
March 31, | |
(in thousands) | |
2024 |
|
Balance Sheet Data: | |
(unaudited) |
|
Cash and cash equivalents | |
$ | 3,001 |
|
Working capital | |
$ | 2,268 |
|
Total assets | |
$ | 6,068 |
|
Additional paid-in capital | |
$ | 55,853 |
|
Total stockholders’ equity | |
$ | 4,324 |
|
RISK
FACTORS
Any
investment in our securities involves a high degree of risk. You should carefully consider the risks described below and set
forth in the section “Risk Factors” in our 2023 Form 10-K, as well as any amendment or update to our risk factors reflected
in subsequent filings with the SEC, which are incorporated by reference in this prospectus, and all other information contained in this
prospectus and incorporated by reference in this prospectus, before you make a decision to invest in our securities. Please
note that the risks highlighted here are not the only ones that we may face. For example, additional risks presently unknown to us or
that we currently consider immaterial or unlikely to occur could also impair our operations. If any of the following events occur or
any additional risks presently unknown to us actually occur, our business, financial condition and operating results may be materially
adversely affected. In that event, the trading price of our common stock could decline and you could lose all or part of your investment.
Risks
Relating to this Offering and Our Units
As
an investor, you may lose all of your investment.
Investing
in our securities involves a high degree of risk. As an investor, you may never recoup all, or even part, of your investment and you
may never realize any return on your investment. You must be prepared to lose all of your investment.
We
expect we will need additional financing to execute our business plan and fund operations, which additional financing may not be available
on reasonable terms or at all.
As
of March 31, 2024, we had total assets of $6.1 million and working capital of $2.3 million. We believe that net
proceeds of this offering, along with our cash on hand as of the date of this prospectus, will not be sufficient to cover our
proposed plan of operations over, at least, the next 12 months. We intend to seek additional funds through various financing sources,
including the sale of our equity, licensing fees for our technology and joint ventures with industry partners. In addition, we will consider
alternatives to our current business plan that may enable to us to achieve revenue producing operations and meaningful commercial success
with a smaller amount of capital. However, there can be no guarantees that such funds will be available on commercially reasonable terms,
if at all. If such financing is not available on satisfactory terms, we may be unable to further pursue our business plan and we may
be unable to continue operations, in which case you may lose your entire investment.
The
report of our independent registered public accounting firm for the year ended December 31, 2023 states that due to our accumulated deficit,
recurring and negative cash flow from operations there is substantial doubt about our ability to continue as a going concern.
This
offering is being made on a best-efforts basis and we may sell fewer than all of the securities offered hereby and may receive significantly
less in net proceeds from this offering, which will provide us only limited working capital.
This offering is being made on
a best-efforts basis and we may sell fewer than all of the securities offered hereby and may receive significantly less in net proceeds
from this offering. Assuming that we receive net proceeds of approximately $8.95 million from this offering (assuming an offering
with gross proceeds of $10 million), we believe that the net proceeds from this offering, together with our existing cash and
cash equivalents, will meet our capital needs until February 2025 under our current business plan. Assuming that we receive net
proceeds of approximately $5.23 million from this offering (assuming an offering with gross proceeds of $6 million), we
believe that the net proceeds from this offering, together with our existing cash and cash equivalents, will satisfy our capital needs
until November 2024 under our current business plan. Assuming that we receive net proceeds of approximately $3.37 million
from this offering (assuming an offering with gross proceeds of $4 million), we believe that the net proceeds from this offering,
together with our existing cash and cash equivalents, will satisfy our capital needs until October 2024 under our current business
plan.
Because
we will have broad discretion and flexibility in how the net proceeds from this offering are used, we may use the net proceeds in ways
in which you disagree.
We
intend to use the net proceeds from this offering for working capital and general corporate purposes. See “Use of Proceeds”
for additional information. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds
of this offering. You will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not
have the opportunity, as part of your investment decision, to assess whether the net proceeds are being used appropriately. It is possible
that the net proceeds will be invested in a way that does not yield a favorable, or any, return for us. The failure of our management
to use such funds effectively could have a material adverse effect on our business, financial condition, operating results and cash flow.
We
may not be able to conclude a licensing arrangement with Bayer or, if we are able to do so, realize the expected benefits.
In
December 2019, we entered into a Joint Development Agreement, or JDA, with Bayer pursuant to which we agreed to the joint development
of certain strains selected from our proprietary microbial library. We have granted Bayer an option to acquire an exclusive royalty bearing
license for up to six strains subject to development activities under the JDA, including an exclusive royalty bearing license to any
related patent rights. We continue to conduct joint development work with Bayer and discuss the proposed royalty bearing license. While
we remain optimistic concerning the successful completion of a royalty bearing license agreement with Bayer, there can be no assurance
we will be able to conclude a licensing agreement or, if we are, that the terms of such license agreement will be favorable to us. Assuming
our joint development work is successful, our ability to convert the successful development work into a commercial license with Bayer
is dependent on a number of risks and factors, many of which are outside our control, including:
|
● |
Bayer’s
internal evaluation of the economic benefits of marketing a dermatological product that may be competitive with other products currently
in development or commercial sale by Bayer regardless of the perceived benefits or advantages of the microbial strain; |
|
● |
Pharmaceutical regulations vary by country and, depending on Bayer’s marketing plans for the product based on our microbial strain, the pharmaceutical regulations in countries to be targeted by Bayer may render the clinical development of the product to be too expensive, time consuming or at risk for regulatory approval;
|
|
● |
Bayer’s internal budgetary and product development
issues, including their ability to commit the capital and human resources towards the development and commercialization of our microbial
strain; and |
|
● |
Bayer’s
willingness to accept our requirements for upfront fees and ongoing royalties. |
In
addition, we believe that in many cases our potential partners or licensee, including Bayer, may engage with us in the early-stage feasibility
testing as part of their evaluation of multiple drug and drug delivery options and prior to making any decision or commitment to the
development of a new drug product. Consequently, even if our joint development activities with Bayer are successful, for reasons unrelated
to the performance of our technology, we may not be able to conclude a licensing agreement with Bayer.
We
are subject to a prohibition against engaging in variable transactions which might be applicable to this offering.
In
connection with our February 2024 follow-on offering, we entered into an underwriting agreement with the underwriter that included our
covenant not to engage in a variable transaction until August 13, 2024. That covenant was also disclosed to investors in that offering
by way of the offering prospectus. The provision in our Series A Warrant that provides for the potential reset of the exercise
price could cause this offering to be viewed as a variable transaction even though the reset
made part of the Series A Warrant will not become effective until after August 13, 2024. In the event the underwriter
or any investor from our February 2024 offering brings a claim that this offering breaches our variable transaction covenant, we
could become subject to an action for a court ordered injunction against the completion of this offering as well as a claim for damages.
There can be no assurance that we will not be subject to such a legal action claiming our breach of the variable prohibition or,
if so, that we will be successful in defending such action.
The
market price of our shares may be subject to fluctuation and volatility. You could lose all or part of your investment.
The market price of our common
stock is subject to wide fluctuations in response to various factors, some of which are beyond our control. Since shares of our common
stock were sold in our initial public offering, or IPO, in June 2023 at a price of $150.00 per share, the reported high and low
sales prices of our common stock have ranged from $155.40 to $2.22 through July 3, 2024. The market price of our
shares on the NYSE American may fluctuate as a result of a number of factors, some of which are beyond our control, including, but not
limited to:
|
● |
actual
or anticipated variations in our and our competitors’ results of operations and financial condition; |
|
● |
changes
in earnings estimates or recommendations by securities analysts, if our shares are covered by analysts; |
|
● |
market
acceptance of our product candidates; |
|
● |
development
of technological innovations or new competitive products by others; |
|
● |
announcements
of technological innovations or new products by us; |
|
● |
publication
of the results of preclinical or clinical trials for our product candidates; |
|
● |
failure
by us to achieve a publicly announced milestone; |
|
● |
delays
between our expenditures to develop and market new or enhanced products and the generation of sales from those products; |
|
● |
developments
concerning intellectual property rights, including our involvement in litigation brought by or against us; |
|
● |
regulatory
developments and the decisions of regulatory authorities as to the approval or rejection of new or modified products; |
|
● |
changes
in the amounts that we spend to develop, acquire or license new products, technologies or businesses; |
|
● |
changes
in our expenditures to promote our product candidates; |
|
● |
our
sale or proposed sale, or the sale by our significant stockholders, of our shares or other securities in the future; |
|
● |
changes
in key personnel; |
|
● |
success
or failure of our research and development projects or those of our competitors; |
|
● |
the
trading volume of our shares; and |
|
● |
general
economic and market conditions and other factors, including factors unrelated to our operating performance. |
These
factors and any corresponding price fluctuations may materially and adversely affect the market price of our shares and result in substantial
losses being incurred by our investors. In the past, following periods of market volatility, public company stockholders have often instituted
securities class action litigation. If we were involved in securities litigation, it could impose a substantial cost upon us and divert
the resources and attention of our management from our business.
There
is no public market for the Class A Warrants or Pre-Funded Warrants being offered in this offering.
There
is no established public trading market for the Class A Warrants or Pre-Funded Warrants being offered
in this offering, and we do not expect a market to develop. In addition, we do not intend to apply to list the Class A Warrants or Pre-Funded Warrants on any securities exchange or nationally recognized trading system, including the NYSE American.
Without an active market, the liquidity of the Class A Warrants and Pre-Funded Warrants will be limited.
This
offering may cause the trading price of our shares of common stock to decrease.
The
price per Unit, together with the number of shares of common stock and Class A Warrants and Pre-Funded Warrants we
propose to issue and ultimately will issue if this offering is completed, may result in an immediate decrease in the market price of
our shares. This decrease may continue after the completion of this offering.
Resales
of our shares of common stock in the public market by our stockholders as a result of this offering may cause the market price of our
shares of common stock to fall.
We
are registering 3,115,265 shares of common stock made part of the Units (including shares of common stock issuable upon
exercise of Pre-Funded Warrants) and an aggregate of
6,230,530 shares of common stock issuable upon the
exercise of the Class A Warrants offered under this prospectus. Sales of substantial amounts of our
shares of common stock in the public market, or the perception that such sales might occur, could adversely affect the market price
of our shares of common stock. The issuance of new shares of common stock could result in resales of our shares of common stock by
our current shareholders concerned about the potential ownership dilution of their holdings. Furthermore, in the future, we may
issue additional shares of common stock or other equity or debt securities exercisable or convertible into shares of common stock.
Any such issuance could result in substantial dilution to our existing shareholders and could cause our stock price to
decline.
Provisions
of the Class A Warrants offered pursuant to this prospectus could discourage an acquisition of us by a third-party.
Certain
provisions of the Class A Warrants offered pursuant to this prospectus could make it more difficult or expensive
for a third-party to acquire us. The Class A Warrants each prohibit us from engaging in certain transactions constituting
“fundamental transactions” unless, among other things, the surviving entity assumes our obligations under the applicable
warrants. These and other provisions of the Class A Warrants could prevent or deter a third-party from acquiring
us even where the acquisition could be beneficial to you.
The
Class A Warrants may have an adverse effect on the market price of our common stock and make it more difficult
to effect a business combination.
To
the extent we issue shares of common stock to effect a future business combination, the potential for the issuance of a substantial number
of additional shares of common stock upon exercise of the Class A Warrants could make us a less attractive acquisition
vehicle in the eyes of a target business. Such Class A Warrants, when exercised, will increase the number of issued
and outstanding shares of common stock and reduce the value of the shares issued to complete the business combination. Accordingly, the
Class A Warrants may make it more difficult to effectuate a business combination or increase the cost of acquiring
a target business. Additionally, the sale, or even the possibility of a sale, of the shares of common stock underlying the Class A Warrants could have an adverse effect on the market price for our securities or on our ability to obtain future financing.
If and to the extent the Class A Warrants are exercised, you may experience dilution to your holdings.
The
Class A Warrants are speculative in nature.
The
Class A Warrants offered hereby as part of the Units do not confer any rights of share of common stock ownership
on their holders, such as voting rights or the right to receive dividends, but rather merely represent the right to acquire shares of
common stock at a fixed price. Following this offering, the market value of the Class A Warrants will be uncertain
and there can be no assurance that the market value of the Class A Warrants, if any, will equal or exceed their
exercise prices, and consequently, whether it will ever be profitable for holders of Class A Warrants to exercise
such Class A Warrants.
If
you purchase our securities in this offering, you may experience future dilution as a result of future equity offerings or other equity
issuances.
In
order to raise additional capital, we believe that we will offer and issue additional shares of our common stock or other securities
convertible into or exchangeable for our common stock in the future. We are generally not restricted from issuing additional securities,
including shares of common stock, securities that are convertible into or exchangeable for, or that represent the right to receive, common
stock or substantially similar securities. The issuance of securities in future offerings may cause dilution to our stockholders, including
investors in this offering. We cannot assure you that we will be able to sell shares or other securities in any other offering at a price
per share that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing other securities
in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common
stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the
price per share in this offering. Further, we may choose to raise additional capital due to market conditions or strategic considerations
even if we believe we have sufficient funds for our current or future operating plans.
We
may not receive any meaningful amount of additional funds upon the exercise of the Class A Warrants
and Pre-Funded Warrants.
Each
Class A Warrant shall be exercisable for a period of five years from the date of issuance and there can be no assurance
of when, if ever, the Class A Warrants will be exercised. Each Pre-Funded Warrant will be exercisable
until it is fully exercised and by means of payment of the nominal cash purchase price upon exercise. Accordingly, there can be no assurance
that we will receive any meaningful additional funds upon the exercise of the Class A Warrants or Pre-Funded
Warrants.
Holders
of the Class A Warrants and Pre-Funded Warrants purchased in this offering will have no rights as common
stockholders until such holders exercise such warrants and acquire shares of our common stock.
Until
holders of the Class A Warrants or Pre-Funded Warrants acquire shares of our common stock upon exercise
thereof, holders of such Class A Warrants and Pre-Funded Warrants will have no rights with respect to
the shares of our common stock underlying such warrants. Upon exercise of the Class A Warrants or Pre-Funded
Warrants, such holders will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs
after the exercise date.
Significant
holders or beneficial holders of shares of our common stock may not be permitted to exercise the Pre-Funded Warrants that they hold.
A
holder of the Pre-Funded Warrants will not be entitled to exercise any portion of any Pre-Funded Warrant that, upon giving effect to
such exercise, would cause: (i) the aggregate number of shares of our common stock beneficially owned by such holder (together with its
affiliates) to exceed 4.99% (or, upon election of holder, 9.99%) of the number of shares of our common stock outstanding immediately
after giving effect to the exercise; or (ii) the combined voting power of our securities beneficially owned by such holder (together
with its affiliates) to exceed 4.99% (or, upon election of holder, 9.99%) of the combined voting power of all of our securities outstanding
immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded
Warrants. As a result, you may not be able to exercise your Pre-Funded Warrants for shares of our common stock at a time when it would
be financially beneficial for you to do so. In such a circumstance, you could seek to sell your Pre-Funded Warrants to realize value,
but you may be unable to do so in the absence of an established trading market and due to applicable transfer restrictions.
Our
failure to meet the continued listing requirements of the NYSE American could result in a delisting of our common stock.
If
we fail to satisfy the continued listing requirements of the NYSE American, such as the corporate governance requirements or the minimum
closing bid price requirement, the NYSE American may take steps to delist our common stock. Such a delisting would likely have a negative
effect on the price of our common stock and would impair your ability to sell or purchase our common stock when you wish to do so. In
the event of a delisting, we can provide no assurance that any action taken by us to restore compliance with listing requirements would
allow our common stock to become listed again, stabilize the market price or improve the liquidity of our common stock, prevent our common
stock from dropping below the NYSE American’s minimum bid price requirement or prevent future non-compliance with the NYSE American’s
listing requirements.
Future
capital raises may dilute your ownership and/or have other adverse effects on our operations.
If
we raise additional capital by issuing equity securities, our existing stockholders’ percentage ownership will be reduced and these
stockholders may experience substantial dilution. If we raise additional funds by issuing debt securities, these debt securities would
have rights senior to those of our common stock and the terms of the debt securities issued could impose significant restrictions on
our operations, including liens on our assets. If we raise additional funds through collaborations and licensing arrangements, we may
be required to relinquish some rights to our intellectual property or candidate products, or to grant licenses on terms that are not
favorable to us.
Shares
eligible for future sale may adversely affect the market for our common stock.
As of the date of this prospectus,
we have approximately 960,146 shares of common stock issued and outstanding, all of which are eligible for sale by means of ordinary
brokerage transactions in the open market pursuant to Rule 144, promulgated under the Securities Act, subject to certain limitations
under Rule 144, except for approximately 33,860 shares of common stock held by our officers and directors which are subject to
lock-ups expiring up to two months from the close of this offering. We have granted demand and piggyback registration rights to
the former holders of our convertible preferred stock and convertible promissory notes pursuant to which they may request the registration
for resale of up to 217,082 shares of common stock, including 5,612 shares of common stock issuable upon exercise of outstanding
warrants. On July 1, 2024, we filed with the SEC a registration statement on Form S-3 to register the resale of those 217,082 shares
of common stock. Any substantial sale of our common stock pursuant to Rule 144 or pursuant to any resale prospectus (including sales
by investors of securities acquired in connection with this offering) may have a material adverse effect on the market price of our common
stock.
We have not paid dividends
on our common stock in the past and have no immediate plans to pay such dividends.
We plan to reinvest all of our
earnings, to the extent we have earnings, to cover operating costs and otherwise become and remain competitive. We do not plan to pay
any cash dividends with respect to our common stock in the foreseeable future. We cannot assure you that we would, at any time, generate
sufficient surplus cash that would be available for distribution to the holders of our common stock as a dividend. Therefore, you should
not expect to receive cash dividends on the common stock we are offering.
If
equity research analysts do not publish research or reports about our business or if they issue unfavorable commentary or downgrade our
shares, the price of our shares could decline.
The
trading market for our shares will rely in part on the research and reports that equity research analysts publish about us and our business,
if at all. We do not have control over these analysts, and we do not have commitments from them to write research reports about
us. The price of our shares could decline if no research reports are published about us or our business, or if one or more equity research
analysts downgrades our shares or if those analysts issue other unfavorable commentary or cease publishing reports about us or our business.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or
incorporates by reference forward-looking statements. The words “believe,” “may,” “will,” “potentially,”
“estimate,” “continue,” “anticipate,” “intend,” “could,” “would,”
“project,” “plan,” “expect” and similar expressions that convey uncertainty of future events or outcomes
are intended to identify forward-looking statements. These forward-looking statements include, but are not limited to, statements concerning
the following:
|
● |
our
future financial and operating results; |
|
● |
our
intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business; |
|
● |
the
timing and success of our plan of commercialization; |
|
● |
our
ability to successfully develop and clinically test our product candidates; |
|
● |
our
ability to obtain FDA approval for any of our product candidates; |
|
● |
our
ability to comply with all U.S. and foreign regulations concerning the development, manufacture and sale of our product candidates; |
|
● |
our
reliance on third parties to manufacture our product candidates; |
|
● |
the
adequacy of the net proceeds of this offering; |
|
● |
the
effects of market conditions on our stock price and operating results; |
|
● |
our
ability to maintain, protect and enhance our intellectual property; |
|
● |
the
effects of increased competition in our market and our ability to compete effectively; |
|
● |
our
plans to use the proceeds from this offering; |
|
● |
costs
associated with initiating and defending intellectual property infringement and other claims; |
|
● |
the
attraction and retention of qualified employees and key personnel; |
|
● |
future
acquisitions of or investments in complementary companies or technologies; and |
|
● |
our
ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public company. |
These forward-looking statements
are subject to a number of risks, uncertainties and assumptions, including those described in the “Risk Factors”
section of our 2023 Form 10-K and elsewhere in this prospectus and our 2024 Form 10-Q. Moreover, we operate in a very competitive
and rapidly changing environment, and new risks emerge from time to time. It is not possible for us to predict all risks, nor can we
assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results
to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions,
the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ materially and
adversely from those anticipated or implied in our forward-looking statements.
You should not rely upon forward-looking
statements as predictions of future events. Although we believe that the expectations reflected in our forward-looking statements are
reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances described in the
forward-looking statements will be achieved or occur. Moreover, neither we nor any other person assumes responsibility for the accuracy
and completeness of the forward-looking statements. We undertake no obligation to update publicly any forward-looking statements for any
reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations, except as required
by law.
You should read this prospectus,
our 2023 Form 10-K and 2024 Form 10-Q which are incorporated herein by reference and the documents that we reference in this prospectus
and have filed with the SEC as exhibits to the registration statement of which this prospectus is a part with the understanding that
our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect.
TRADEMARKS,
SERVICE MARKS AND TRADE NAMES
We
own or have rights to use a number of registered and common law trademarks, service marks and/or trade names in connection with our business
in the United States and/or in certain foreign jurisdictions.
Solely
for convenience, the trademarks, service marks, logos and trade names referred to in this prospectus are without the ® and ™
symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable
law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This prospectus contains
additional trademarks, service marks and trade names of others, which are the property of their respective owners. All trademarks, service
marks and trade names appearing in this prospectus are, to our knowledge, the property of their respective owners. We do not intend our
use or display of other companies’ trademarks, service marks, copyrights or trade names to imply a relationship with, or endorsement
or sponsorship of us by, any other companies.
USE
OF PROCEEDS
We estimate that the net proceeds
we will receive from the sale of our securities in this offering, assuming all the securities we are offering are sold, after deducting
placement agent fees and other estimated offering expenses payable by us, and assuming no sale of any Pre-Funded Warrants and no exercise
of the Class A Warrants being issued in this offering, will be approximately $8.95 million, based on an assumed
public offering price of $3.21 per Unit.
However, because this is a best-efforts
offering and there is no minimum offering amount required as a condition to the closing of this offering, the actual offering amount,
the placement agent fees and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts
set forth on the cover page of this prospectus. Assuming that we receive net proceeds of approximately $5.23 million from this
offering (assuming an offering with gross proceeds of $6 million), we believe that the net proceeds from this offering, together
with our existing cash and cash equivalents, will meet our capital needs until November 2024 under our current business plan.
Assuming that we receive net proceeds of approximately $3.37 million from this offering (assuming an offering with gross proceeds
of $4 million), we believe that the net proceeds from this offering, together with our existing cash and cash equivalents, will
satisfy our capital needs until October 2024 under our current business plan. Assuming that we receive net proceeds of approximately
$2.44 million from this offering (assuming an offering with gross proceeds of $3 million), we believe that the net proceeds
from this offering, together with our existing cash and cash equivalents, will satisfy our capital needs until September 2024
under our current business plan.
We expect to use the net proceeds
from this offering for working capital and general corporate purposes. This represents our best estimate of the manner in which we will
use the net proceeds we receive from this offering based upon the current status of our business, but we have not reserved or allocated
amounts for specific purposes and we cannot specify with certainty how or when we will use any of the net proceeds. The amounts and timing
of our actual use of the net proceeds from this offering will vary depending on numerous factors, including the factors described under
“Risk Factors” located elsewhere in this prospectus or in the information incorporated by reference herein or therein. As
a result, our management will have broad discretion in the application of the net proceeds, and investors will be relying on our judgment
regarding the application of the net proceeds from this offering.
DIVIDEND
POLICY
We
have never declared or paid any cash dividends on our common stock and we do not anticipate paying any cash dividends on our common stock
in the foreseeable future. Investors should not purchase our common stock with the expectation of receiving cash dividends. The payment
of dividends on our common stock, if any, in the future is within the discretion of our Board and will depend on our earnings, capital
requirements and financial condition and other relevant facts. We currently intend to retain all future earnings, if any, to finance
the development and growth of our business.
CAPITALIZATION
The following table sets forth
our cash and capitalization as of March 31, 2024:
|
● |
on an actual basis; and |
|
● |
on
a as adjusted basis to reflect our sale of 3,115,265 Units in this offering at the assumed public offering price of $3.21
per Unit, the last reported sale price of our common stock on the NYSE American on July 11, 2024, and assuming
no sale of Pre-Funded Warrants or exercise of Class A Warrants, after deducting placement agent
fees and estimated offering expenses payable by us. |
You should read the information
in this table together with our financial statements and related notes and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” sections appearing in our 2023 Form 10-K and 2024 Form 10-Q, each of which are
incorporated herein by reference.
| |
March
31, 2024 | |
(in
thousands) | |
Actual | | |
As
Adjusted | |
Cash
and cash equivalents | |
$ | 3,001 | | |
$ | 12,251 | |
Common
stock, $0.0001 par value, 100,000,000 shares authorized, 960,146 shares issued and outstanding, actual; 4,075,411 shares
issued and outstanding, as adjusted | |
| 3 | | |
| 13 | |
Additional
paid-in capital | |
$ | 55,853 | | |
$ | 64,803 | |
Accumulated
deficit | |
$ | (51,531 | ) | |
$ | (51,531 | ) |
Total
stockholders’ equity | |
$ | 4,324 | | |
$ | 13,274 | |
Total
capitalization | |
$ | 4,324 | | |
$ | 13,274 | |
DESCRIPTION
OF SECURITIES
General
The
following description summarizes the most important terms of our capital stock. Because it is only a summary, it does not contain all
the information that may be important to you. For a complete description of the matters set forth in this “Description of Securities,”
you should refer to our amended and restated certificate of incorporation and amended and restated bylaws and investor rights agreement,
which are included as exhibits to the registration statement of which this prospectus forms a part, and to the applicable provisions
of Delaware law.
Our authorized capital stock consists
of 100,000,000 shares of common stock, $0.0001 par value per share, and 10,000,000 shares of undesignated preferred stock, $0.0001 par
value per share.
There are 960,146
shares of our common stock outstanding and no shares of our preferred stock outstanding as of the date of this prospectus. On
July 1, 2024, we effected a 1-for-30 reverse stock split of our issued and outstanding shares of common stock. All historical share
and per share amounts reflected in this prospectus have been adjusted to reflect the reverse stock split.
As of the date of this prospectus,
we had 17 stockholders of record.
Common
Stock
The
holders of common stock are entitled to one vote for each share of common stock. The holders of common stock are entitled to any dividends
that may be declared by the Board out of funds legally available for payment of dividends at such times and in such amounts as the Board
in its discretion. In the event of any liquidation, dissolution or winding up of the Company, holders of common stock are entitled to
receive the assets of the Company available for distribution to its stockholders ratably in proportion to the number of shares of common
stock held by the holders of common stock. The holders of shares of common stock have no preemptive, conversion, subscription rights
or cumulative voting rights.
Preferred
Stock
As
of the date of this prospectus, there are a total of 10,000,000 shares of undesignated preferred stock authorized for issuance, none
of which are outstanding.
Our
Board is authorized, without further action by our stockholders, to provide from time to time out of the unissued shares of preferred
stock for one or more series of preferred stock, and with respect to each such series, to fix the number of shares constituting such
series and the designation of such series, the powers (including voting powers), if any, of the shares of such series and the preferences
and relative, participating, optional, special or other rights, if any, and the qualifications, limitations, or restrictions, if any,
of the shares of such series. The issuance of our preferred stock could adversely affect the voting power of holders of our common stock
and the likelihood that such holders will receive dividend payments and payments upon liquidation. In addition, the issuance of preferred
stock could have the effect of delaying, deferring, or preventing a change of control or other corporate action.
Class A Warrants
The following
is a summary of certain terms and provisions of the Class A Warrants that are being offered hereby and is not complete
and is subject to, and qualified in its entirety by, the provisions of the Class A Warrants, the form of which is
filed as an exhibit to the registration statement of which this prospectus forms a part. Prospective investors should carefully review
the terms and provisions of the form of Class A Warrants for a complete description of the terms and conditions of the
Class A Warrants.
Duration and
Exercise Price
Each Class A
Warrant offered hereby is exercisable upon issuance at an initial exercise price of $3.21 (assuming
an offering price of $3.21 per Unit) per share of common stock, and will expire five (5) years from the date of issuance. However, on the date that is 30 calendar days immediately following
the date of issuance of the Class A Warrants (the “Reset Date”), if the Reset Price, as defined below, is less than the exercise
price at such time, the exercise price will be decreased to the Reset Price. “Reset Price” shall mean 100% of the trailing
five-day VWAP immediately preceding the Reset Date, provided, that in no event shall the Reset Price be less than 20% of the most recent
closing price at the time of execution of the placement agency agreement (subject to adjustment for reverse and forward stock splits,
recapitalizations and similar transactions following the date of the securities purchase agreement). Following the determination of the Reset Price, the exercise price and number of shares of common stock issuable upon exercise of
the Class A Warrants will be subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations
or similar events affecting our common stock. The Class A Warrants will be issued separately from the common stock or Pre-Funded
Warrants, respectively.
Exercisability
The Class
A Warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise
notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of
a cashless exercise as discussed below). A holder (together with its affiliates) may not exercise any portion of such holder’s
Class A Warrants to the extent that the holder would own more than 4.99% (or, at the election of the holder, 9.99%) of
the outstanding common stock immediately after exercise. However, upon notice from the holder to us, the holder may decrease or increase
the holder’s beneficial ownership limitation, which may not exceed 9.99% of the number of outstanding shares of common stock immediately
after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the warrants, provided
that any increase in the beneficial ownership limitation will not take effect until 61 days following notice to us.
Cashless Exercise
If, at the time a
holder exercises its Class A Warrants, a registration statement registering the issuance or resale of the shares of common
stock underlying the Class A Warrants under the Securities Act is not then effective or available for the issuance of such
shares, then in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate
exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common
stock determined according to a formula set forth in the Class A Warrants.
Fundamental
Transactions
In the event of any
fundamental transaction, as described in the Class A Warrants and generally including any merger or consolidation with
or into another entity, sale of all or substantially all of our assets, tender offer or exchange offer, or reclassification of our common
stock, then upon any subsequent exercise of the Class A Warrants, the holder will have the right to receive as alternative
consideration, for each share of our common stock that would have been issuable upon such exercise immediately prior to the occurrence
of such fundamental transaction, the number of shares of common stock of the successor or acquiring corporation or of our Company, if
it is the surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the
number of shares of our common stock for which the Class A Warrants are exercisable immediately prior to such event. Notwithstanding
the foregoing, in the event of a fundamental transaction, the holders of the Class A Warrants have the right to require
us or a successor entity to redeem the Class A Warrants for cash in the amount of the Black-Scholes Value (as defined in
the Common Warrants) of the remaining unexercised portion of the Class A Warrants on the date of the consummation of such
fundamental transaction, concurrently with or within 30 days following the consummation of a fundamental transaction.
However, in the event
of a fundamental transaction which is not in our control, including a fundamental transaction not approved by our Board, the holders
of the Class A Warrants will only be entitled to receive from us or our successor entity, as of the date of consummation
of such fundamental transaction the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the
unexercised portion of the Class A Warrants that are being offered and paid to the holders of our common stock in connection
with the fundamental transaction, whether that consideration is in the form of cash, stock or any combination of cash and stock, or whether
the holders of our common stock are given the choice to receive alternative forms of consideration in connection with the fundamental
transaction.
Transferability
Subject to applicable
laws, the Class A Warrants may be transferred at the option of the holder upon surrender of the Class A Warrants
to us together with the appropriate instruments of transfer.
Fractional
Shares
No fractional shares
of common stock will be issued upon the exercise of the Class A Warrants. Rather, the number of shares of common stock
to be issued will, at our election, either be rounded up to the nearest whole number or we will pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the exercise price.
Trading Market
There is no established
trading market for the Class A Warrants, and we do not expect an active trading market to develop. We do not intend to
apply to list the Class A Warrants on any securities exchange or other trading market. Without a trading market, the liquidity
of the Class A Warrants will be extremely limited. The shares of common stock issuable upon exercise of the Class
A Warrants are currently traded on the NYSE American under the symbol “AZTR”.
Right as a
Stockholder
Except as otherwise
provided in the Class A Warrants or by virtue of the holder’s ownership of shares of our common stock, such holder
of Class A Warrants does not have the rights or privileges of a holder of our common stock, including any voting rights,
until such holder exercises such holder’s Class A Warrants. The Class A Warrants provide that holders
have the right to participate in distributions or dividends paid on our shares of common stock.
Waivers and
Amendments
No
term of the Class A Warrants may be amended or waived without the written consent of the holder.
Governing
Law.
The
Class A Warrants are governed by New York law.
Pre-Funded
Warrants
The
following summary of certain terms and provisions of the Pre-Funded Warrants that are being offered hereby is not complete and is subject
to, and qualified in its entirety by, the provisions of the Pre-Funded Warrants, the form of which is filed as an exhibit to the registration
statement of which this prospectus forms a part. Prospective investors should carefully review the terms and provisions of the form of
Pre-Funded Warrants for a complete description of the terms and conditions of the Pre-Funded Warrants.
Duration
and Exercise Price
Each
Pre-Funded Warrant offered hereby will have an initial exercise price equal to $0.0001 per share of common stock. The Pre-Funded
Warrants will be exercisable immediately, and may be exercised at any time until the Pre-Funded Warrants are exercised in full. The exercise
price and number of shares of common stock issuable upon exercise is subject to appropriate proportional adjustment in the event of share
dividends, share splits, reorganizations or similar events affecting our shares of common stock and the exercise price.
Exercisability
The
Pre-Funded Warrants will be exercisable, at the option of each holder, in whole or in part by delivering to us a duly executed exercise
notice and within the earlier of (i) two trading days and (ii) the number of trading days comprising the standard settlement period with
respect to the shares of common stock as in effect on the date of delivery of the notice of exercise thereafter, payment in full for
the number of shares of common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder
may not exercise any portion of the Pre-Funded Warrant to the extent that the holder, together with its affiliates and any other persons
acting as group together with any such persons, would own more than 4.99% (or, at the election of the purchaser, 9.99%) of the number
of shares of our common stock outstanding immediately after exercise (the “Beneficial Ownership Limitation”); provided that
a holder with Beneficial Ownership Limitation of 4.99%, upon notice to use and effective 61 days after the date such notice is delivered
to us may increase the Beneficial Ownership Limitation so long as it in no event exceeds 9.99% of the number of shares of common stock
outstanding immediately after exercise.
Cashless
Exercise
The
Pre-Funded Warrants may also be exercised, in whole or in part, at such time by means of “cashless exercise” in which the
holder shall be entitled to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined
according to a formula set forth in the Pre-Funded Warrants, which generally provides for a number of shares of common stock equal to
(A)(1) the last closing trade price for such security on the NYSE American on (x) the trading day immediately preceding the date
of the applicable notice of exercise, if the notice of exercise is executed and delivered on day that is not a trading day or prior to
the opening of “regular trading hours” on a trading day or (y) the trading day of the notice of exercise, if the notice of
exercise is executed and delivered after the close of “regular trading hours” on such trading day; (2) at the option
of the holder, either (x) the volume weighted average price on the trading day immediately preceding the date of the applicable notice
of exercise or (y) the bid price of our common stock on the NYSE American as of the time of the holder’s execution of the
applicable notice of exercise if such notice of exercise is executed during “regular trading hours” on a trading day and
is delivered within two hours thereafter (including until two hours after the close of “regular trading hours” on a trading
day); or (3) the last closing trade price for such security on the NYSE American on the day of the notice of exercise, if the
notice of exercise is executed and delivered after “regular trading hours” on a trading day, less (B) the exercise price,
multiplied by (C) the number of shares of common stock the Pre-Funded Warrant was exercisable into, with such product then divided by
the number determined under clause (A) in the this sentence.
Fractional
Shares
No
fractional shares of common stock will be issued upon the exercise of the Pre-Funded Warrants. Rather, we will, at our election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price or round
up to the next whole shares of common stock.
Transferability
Subject
to applicable laws, a Pre-Funded Warrant may be transferred at the option of the holder upon surrender of the Pre-Funded Warrant to us
together with the appropriate instruments of transfer and funds sufficient to pay any transfer taxes payable upon such transfer.
Trading
Market
There
is no trading market available for the Pre-Funded Warrants on any securities exchange or nationally recognized trading system. We do
not intend to list the Pre-Funded Warrants on any securities exchange or nationally recognized trading system. The shares of common stock
issuable upon exercise of the Pre-Funded Warrants are currently listed on the NYSE American under the symbol “AZTR.”
Rights
as a Shareholder
Except
as otherwise provided in the Pre-Funded Warrants or by virtue of such holder’s ownership of the underlying shares of common stock,
the holders of the Pre-Funded Warrants do not have the rights or privileges of holders of our ordinary shares represented by shares of
common stock, including any voting rights, until they exercise their Pre-Funded Warrants.
Fundamental
Transaction
In
the event of a fundamental transaction, as described in the Pre-Funded Warrants and generally including any reorganization, recapitalization
or reclassification of our shares of common stock, the sale, transfer or other disposition of all or substantially all of our properties
or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common
stock or 50% or more of the voting power of the common equity of the Company, the holders of the Pre-Funded Warrants will be entitled
to receive upon exercise of the Pre-Funded Warrants the kind and amount of securities, cash or other property that the holders would
have received had they exercised the Pre-Funded Warrants immediately prior to such fundamental transaction.
Waivers
and Amendments
No
term of the Pre-Funded Warrants may be amended or waived without the written consent of the holder.
Governing
Law.
The
Pre-Funded Warrants are governed by New York law.
Warrants
We
have outstanding the following warrants to purchase shares of our common stock:
| ● | Warrants
issued in connection with our April 2018 placement of unsecured convertible promissory notes
to purchase up to an aggregate of 1,596 shares of our common stock, at a per share
exercise price equal to $14.40. The warrants expire in April 2028. |
| ● | Warrants
issued in connection with our February 2019 placement of Series A-1 convertible preferred
shares to purchase up to an aggregate of 7,195 shares of our common stock, at a per
share exercise price equal to $158.40. The warrants expire in February 2026. |
| ● | Warrants
issued to the underwriter of our IPO to purchase 2,000 shares of our common stock.
These warrants are exercisable at $187.50 per share. The warrants expire in June 2028. |
| ● | Warrants
issued to the underwriter of our February 2024 public offering to purchase 22,222
shares of our common stock. These warrants are exercisable at $11.25 per share. The
warrants expire in February 2029. |
Stock
Incentive Plans
We have adopted the Azitra, Inc.
2016 Stock Incentive Plan, or 2016 Plan, providing for the grant of non-qualified stock options and incentive stock options to purchase
shares of our common stock and for the grant of restricted and unrestricted share grants and restricted stock units. We currently have
reserved 8,078 shares of our common stock under the 2016 Plan. The purpose of the 2016 Plan is to provide eligible participants
with an opportunity to acquire an ownership interest in our company. All officers, directors, employees and consultants to our company
are eligible to participate under the 2016 Plan. The 2016 Plan provides that options may not be granted at an exercise price less than
the fair market value of our shares of common stock on the date of grant. As of the date of this prospectus, we have outstanding options
granted under the 2016 Plan to purchase an aggregate of 40,275 shares of our common stock at an average exercise price of $40.92
per share.
In March 2023, our Board and
stockholders approved and adopted the Azitra, Inc. 2023 Stock Incentive Plan, or 2023 Plan, providing for the grant of non-qualified
stock options and incentive stock options to purchase shares of our common stock and for the grant of restricted and unrestricted share
grants and restricted stock units. We currently have reserved 66,666 shares of our common stock under the 2023 Plan. The purpose
of the 2023 Plan is to provide eligible participants with an opportunity to acquire an ownership interest in our company. All officers,
directors, employees and consultants to our company are eligible to participate under the 2023 Plan. The 2023 Plan provides that options
may not be granted at an exercise price less than the fair market value of our shares of common stock on the date of grant. As of the
date of this prospectus, we have outstanding options granted under the 2023 Plan to purchase an aggregate of 1,333 shares of
our common stock at an average exercise price of $60.10 per share.
Dividends
We
do not anticipate the payment of cash dividends on our common stock in the foreseeable future.
Registration
Rights
Certain
holders of our common stock, or their permitted transferees, are entitled to the registration rights described below. The registration
of shares of our common stock pursuant to the exercise of registration rights described below would enable the holders to sell these
shares without restriction under the Securities Act when the applicable registration statement is declared effective. We will pay the
registration expenses, other than the underwriting discounts and commissions, of the shares registered pursuant to the registrations
described below. The registration rights described below will expire upon the earlier of June 20, 2026 or when all investors, considered
with their affiliates, can sell all of their shares in a three-month period under Rule 144.
Convertible
Preferred Stock Registration Rights. In connection with our convertible preferred stock financings, we entered into an investor rights
agreement, as amended, pursuant to which we have granted the purchasers of our convertible preferred stock certain demand and piggyback
registration rights. Those parties beneficially hold approximately 217,082 shares of our common stock, including 5,612
shares of our common stock issuable upon exercise of warrants issued to the parties in connection with our 2018 placement of our unsecured
convertible promissory notes and our 2019 placement of Series A-1 convertible preferred shares.
Pursuant
to the investor rights agreement, we are required, upon the written request by the holders of at least 50% of the shares that are entitled
to registration rights under the investor rights agreement, to register, as soon as practicable, all or a portion of these shares for
public resale. We are required to effect two demand registrations pursuant to a registration statement on Form S-1.
Subject to our eligibility to use a registration statement on Form S-3, we are required to effect an unlimited number of demand registrations
pursuant to Form S-3, provided such requests for registration be for an aggregate offering price, net of the underwriting discounts and
commissions, equal or greater than $1 million. Pursuant to the investor rights agreement, we have also granted to the piggyback registration
rights and demand registration rights. These demand and piggyback registration rights terminate as to each investor when their shares
subject to the registration rights agreement may be sold by the investor pursuant to Rule 144 under the Securities Act without regard
to both the volume limitations for sales as provided in Rule 144.
On July 1, 2024,
we filed with the SEC a registration statement on Form S-3 to register the resale of the 217,082 shares of common stock held by the stockholders
holding demand registration rights.
Underwriter Registration Rights.
In connection with our IPO and February 2024 public offering, we issued to the representative of the underwriters or its designees
warrants, referred to as the Representative’s Warrants, to purchase up to a total of 2,000 shares and 22,222 shares
of our common stock, respectively. The Representative’s Warrants provide for registration rights (including a one-time demand registration
right and unlimited piggyback rights) consistent with FINRA Rule 5110.05. The demand for registration may be made at any time beginning
on the initial exercise date of the Representative’s Warrants and expiring on the fifth anniversary of the date of the public offering
prospectus to which the warrants relate in accordance with FINRA Rule 5110(g)(8)(C). In addition to the one-time demand registration
right, the Representative’s Warrants have unlimited piggyback rights, for a period of no more than two years from the initial exercise
date of the Representative’s Warrants in accordance with FINRA Rule 5110(g)(8)(D).
Anti-Takeover
Effects of Certain Provisions of Delaware Law and Our Charter Documents
The
following is a summary of certain provisions of Delaware law and our amended and restated certificate of incorporation and amended and
restated bylaws. This summary does not purport to be complete and is qualified in its entirety by reference to the corporate law of Delaware
and our amended and restated certificate of incorporation and amended and restated bylaws.
Delaware
Law
We
are subject to Section 203 of the Delaware General Corporation Law, an anti-takeover law. In general, Section 203 prohibits a Delaware
corporation from engaging in any business combination (as defined below) with any interested stockholder (as defined below) for a period
of three years following the date that the stockholder became an interested stockholder, unless:
| ● | prior
to that date, the board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested stockholder; |
| ● | upon
consummation of the transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding for purposes of determining the number of
shares of voting stock outstanding (but not the voting stock owned by the interested stockholder)
those shares owned by persons who are directors and officers and by excluding employee stock
plans in which employee participants do not have the right to determine whether shares held
subject to the plan will be tendered in a tender or exchange offer; or |
| ● | on
or subsequent to that date, the business combination is approved by the board of directors
of the corporation and authorized at an annual or special meeting of stockholders, and not
by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock that is not owned by the interested stockholder. |
Section
203 defines “business combination” to include the following:
| ● | any
merger or consolidation involving the corporation and the interested stockholder; |
| ● | any
sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation
involving the interested stockholder; |
| ● | subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; |
| ● | subject
to limited exceptions, any transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the corporation beneficially
owned by the interested stockholder; or |
| ● | the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the corporation. |
In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting
stock of the corporation, or who beneficially owns 15% or more of the outstanding voting stock of the corporation at any time within
a three-year period immediately prior to the date of determining whether such person is an interested stockholder, and any entity or
person affiliated with or controlling or controlled by any of these entities or persons.
Our
Charter Documents
Our
charter documents include provisions that could have the effect of discouraging others from making tender offers for our shares and may
have the effect of deterring hostile takeovers or delaying changes in our control or management. These provisions are intended to enhance
the likelihood of continued stability in the composition of our Board and its policies and to discourage certain types of transactions
that may involve an actual or threatened acquisition of us. These provisions are also designed to reduce our vulnerability to an unsolicited
acquisition proposal and to discourage certain tactics that may be used in proxy fights. However, such provisions may have the effect
of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a stockholder might consider
favorable, including a proposal that might result in the payment of a premium over the market price for the shares held by our stockholders.
Certain of these provisions are summarized in the following paragraphs.
Effects
of authorized but unissued common stock and preferred stock. One of the effects of the existence of authorized but unissued common
stock and preferred stock may be to enable our Board to make more difficult or to discourage an attempt to obtain control of our Company
by means of a merger, tender offer, proxy contest or otherwise, and thereby to protect the continuity of management. If, in the due exercise
of its fiduciary obligations, the Board were to determine that a takeover proposal was not in our best interest, such shares could be
issued by the Board without stockholder approval in one or more transactions that might prevent or render more difficult or costly the
completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent stockholder group,
by putting a substantial voting block in institutional or other hands that might undertake to support the position of the incumbent Board,
by effecting an acquisition that might complicate or preclude the takeover, or otherwise.
Cumulative
Voting. Our amended and restated certificate of incorporation does not provide for cumulative voting in the election of directors,
which would allow holders of less than a majority of the stock to elect some directors.
Vacancies.
Our amended and restated bylaws provide that all vacancies may be filled by the affirmative vote of a majority of directors then in office,
even if less than a quorum.
Special
Meeting of Stockholders and Stockholder Action by Written Consent. A special meeting of stockholders may only be called by our Board
or the chairperson of our Board. All stockholder actions must be effected at a duly called meeting of stockholders and not by written
consent.
Advance
Notice Provisions. Our amended and restated bylaws provide advance notice procedures for stockholders seeking to bring business before
our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our amended
and restated bylaws will also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions
might preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors
at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions may also discourage
or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise
attempting to obtain control of our company.
Choice
of Forum. Our amended and restated certificate of incorporation and amended and restated bylaws will provide that the Court of Chancery
of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting
a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our amended
and restated certificate of incorporation or our bylaws; or any action asserting a claim against us that is governed by the internal
affairs doctrine.
Transfer
Agent and Registrar
The
transfer agent and registrar for our shares of common stock is VStock Transfer, LLC. The transfer agent and registrar’s address
is 18 Lafayette Place, Woodmere, New York 11598.
National
Securities Exchange Listing
Our
common stock is listed on the NYSE American under the symbol “AZTR.”
SHARES
ELIGIBLE FOR FUTURE SALE
Future
sales of substantial amounts of shares of common stock, including shares issued upon the exercise of outstanding warrants and options,
in the public market after this offering, or the possibility of these sales occurring, could adversely affect the prevailing market price
for our common stock or impair our ability to raise equity capital.
Upon the completion of this offering,
a total of 4,075,411 shares of common stock will be outstanding. All 3,115,265 shares of common stock sold in this offering
by us will be freely tradable in the public market
without restriction or further registration under the Securities Act, unless these shares are held by “affiliates,” as that
term is defined in Rule 144 under the Securities Act. In addition, of the 960,146 shares of our common stock outstanding prior
to this offering, approximately 704,547 shares will be freely tradable in the public market without restriction or further registration
under the Securities Act.
The remaining 255,5992
shares of common stock will be “restricted securities,” as that term is defined in Rule 144 under the Securities Act. These
restricted securities are eligible for public sale only if they are registered under the Securities Act or if they qualify for an exemption
from registration under Rule 144 under the Securities Act, which is summarized below.
Subject
to the lock-up agreements described below and the provisions of Rule 144 under the Securities Act, these restricted securities are available
for sale in the public market.
Rule
144
In
general, under Rule 144 as currently in effect, a person who is not deemed to have been one of our affiliates for purposes of the Securities
Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months,
including the holding period of any prior owner other than our affiliates, is entitled to sell such shares without complying with the
manner of sale, volume limitation, or notice provisions of Rule 144, subject to compliance with the public information requirements of
Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period
of any prior owner other than our affiliates, then such person is entitled to sell such shares without complying with any of the requirements
of Rule 144.
In
general, under Rule 144, as currently in effect, our affiliates or persons selling shares on behalf of our affiliates are entitled to
sell upon expiration of the lock-up agreements described below, within any three-month period a number of shares that does not exceed
the greater of:
| ● | 1%
of the number of shares of common stock then outstanding; or |
| ● | the
average weekly trading volume of the common stock during the four calendar weeks preceding
the filing of a notice on Form 144 with respect to such sale. |
Sales
under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions
and notice requirements and to the availability of current public information about us.
Lock-Up
Agreements
We and each of our directors,
officers and 5% stockholders have agreed, subject to certain exceptions, not to offer, pledge, sell, contract to sell, grant,
lend, or otherwise transfer or dispose of, directly or indirectly, or enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of any shares of our capital stock or any securities convertible into
or exercisable or exchangeable for shares of our common stock, for a period of time following this offering. Please see “Plan
of Distribution – Lock-Up Agreements.”
Equity
Plans
We
have filed with the SEC a registration statement on Form S-8 under the Securities Act to register all of the shares of common stock to
be issued or reserved for issuance under our 2016 Plan and 2023 Plan. Shares covered by this registration statement are eligible for
sale in the public market, upon the expiration or release from the terms of the lock-up agreements and subject to vesting of such shares.
PLAN
OF DISTRIBUTION
We
have engaged Maxim Group LLC to act as our exclusive placement agent pursuant to a placement agency agreement in connection with this
offering, dated as of July, 2024. The placement agent is not purchasing or selling any of
the securities, nor is it required to arrange for the purchase and sale of any specific number or dollar amount of securities, but have
agreed to use their reasonable “best-efforts” to arrange for the sale of the securities offered by this prospectus supplement.
Therefore, we may not sell the entire amount of securities being offered.
We
may enter into a securities purchase agreement directly with certain of the institutional investors, at the investor’s option,
who purchase our securities in this offering. Investors who do not enter into a securities purchase agreement shall rely solely on this
prospectus in connection with the purchase of our securities in this offering. The placement agent may engage one or more subagents or
selected dealers in connection with this offering.
The
placement agency agreement provides that the placement agent’s obligations are subject to conditions contained in the placement
agency agreement.
Delivery
of the securities offered hereby is expected to occur on or about , 2024, subject to satisfaction or waiver of customary closing conditions.
Placement
Agent Fees, Commissions and Expenses
We
have agreed to pay the placement agent a cash fee equal to 7% of the gross proceeds received from the sale of securities in the offering.
We have also agreed to reimburse the placement agent in connection with this offering for its out-of-pocket expenses incurred
in connection with this offering, including the fees and expenses of the counsel for the placement agent, in an amount up to $100,000,
of which $10,000 has been paid as an advance to be applied towards reasonable out-of-pocket expenses.
The
following table shows the public offering price, placement agent fees and proceeds, before expenses, to us, assuming the purchase of all the securities we are offering.
|
|
Per Unit |
|
|
Total |
|
Offering
price(1) |
|
$ |
|
|
|
$ |
|
|
Placement
agent fees |
|
$ |
|
|
|
$ |
|
|
Proceeds,
before expenses, to us |
|
$ |
|
|
|
$ |
|
|
(1) |
Assumes
sale of Units including one share of common stock. The public offering price of Units including one Pre-Funded Warrant will be $3.2099. |
We
estimate the total offering expenses of this offering that will be payable by us, excluding the placement agent’s fees and expenses,
will be approximately $250,000.
Placement
Agent Warrants
We
have agreed to issue to the placement agent or its designees warrants to purchase shares of our common stock in an amount equal to 4%
of the aggregate number of shares of common stock (and/or Pre-Funded Warrants) made part of the Units sold in this offering),
or the Placement Agent’s Warrants. The Placement Agent’s Warrants will be exercisable at a per share exercise price equal
to 125% of the public offering price per share of the shares of common stock sold in this offering. The Placement Agent’s Warrants
are exercisable at any time, from time to time, in whole or in part, during the four and one half year period commencing 180 days from
the commencement of sales of the securities in this offering.
The
Placement Agent’s Warrants and the shares of common stock underlying the Placement Agent’s Warrants have been deemed compensation
by FINRA and are, therefore, subject to a 180-day lock-up pursuant to FINRA Rule 5110(e)(1) except as permitted under FINRA Rule 5110(e)(2).
The Placement Agent’s Warrants and the securities underlying the Placement Agent’s Warrants may not be sold,
transferred, assigned, pledged, or hypothecated, nor may they be the subject of any hedging, short sale, derivative, put,
or call transaction that would result in the effective economic disposition of the Placement Agent’s Warrants or the underlying
shares of common stock for a period of 180 days from the commencement of sales in this offering. The Placement Agent’s Warrants
will provide for cashless exercise and for registration rights (including a one-time demand registration right and unlimited piggyback
rights) consistent with FINRA Rule 5110(g)(8). The Placement Agent’s Warrants will also provide for customary anti-dilution
provisions (for stock dividends and splits and recapitalizations) consistent with FINRA Rule 5110.
Indemnification
We
have agreed to indemnify the placement agent and specified other persons against certain liabilities, including liabilities arising under
the Securities Act, relating to or arising out of the placement agent’s activities under the engagement letter and to contribute
to payments that the placement agent may be required to make in respect of such liabilities.
Lock-Up
Agreements
We
have agreed that for a period of up to three months from the closing of this offering, neither we nor any subsidiary may, without
the prior written consent of the placement agent (i) issue, enter into any agreement to issue or announce the issuance or proposed
issuance of any shares of common stock or common stock equivalents or (ii) file any registration statement or prospectus, or any
amendment or supplement thereto, subject to certain exceptions. The Company has also agreed not to effect or enter into an agreement
to effect any issuance of common stock or common stock equivalents involving a Variable Rate Transaction, as defined in the Securities
Purchase Agreement, for a period of up to six months following the closing of this offering (or, in the case of an “at-the-market”
offering with the placement agent, up to three months from the closing of this offering).
Each
of our officers, directors and any other holder(s) of five percent (5%) or more of the outstanding shares of common stock have agreed
to be subject to a lock-up period of up to two months from the closing of the offering pursuant to this prospectus.
This means that, during the applicable lock-up period, such persons may not offer for sale, contract to sell, sell, distribute, grant
any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of, directly or indirectly, any of our shares of common
stock or any securities convertible into, or exercisable or exchangeable for, shares of common stock, subject to customary exceptions.
The
placement agent may in its sole discretion and at any time without notice release some or all of the shares subject to lock-up agreements
prior to the expiration of the lock-up period. When determining whether or not to release shares from the lock-up agreements, the placement
agent will consider, among other factors, the security holder’s reasons for requesting the release, the number of shares for which
the release is being requested and market conditions at the time.
Regulation
M Compliance
The
placement agent may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions
received by it and any profit realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements
of the Securities Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and
Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of common shares by the
placement agent acting as principal. Under these rules and regulations, the placement agent:
|
● |
may
not engage in any stabilization activity in connection with our securities; and |
|
● |
may
not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted
under the Exchange Act, until it has completed its participation in the distribution. |
Determination
of Offering Price and Warrant Exercise Price
The
actual offering price of the securities we are offering, including the exercise price of the Class A Warrants, were negotiated
between us, the placement agent and the investors in the offering based on the trading of our shares of common stock prior to the offering,
among other things. Other factors considered in determining the public offering price of the securities we are offering, as well as the
exercise price of the Class A Warrants, include our history and prospects, the stage of development of our business, our
business plans for the future and the extent to which they have been implemented, an assessment of our management, the general conditions
of the securities markets at the time of the offering and such other factors as were deemed relevant.
The
Securities Purchase Agreement is included as an exhibit to a Current Report on Form 8-K that we have filed with the SEC and
that is incorporated by reference into the registration statement of which this prospectus supplement forms a part.
From
time to time, Maxim may provide in the future various advisory, investment and commercial banking and other services to us in the ordinary
course of business, for which they have received and may continue to receive customary fees and commissions. However, except as disclosed
in this prospectus supplement, we have no present arrangements with Maxim for any further services.
Electronic
Distribution
A
prospectus in electronic format may be made available on a website maintained by the placement agent. In connection with the offering,
the placement agent or selected dealers may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses
that are printable as Adobe® PDF will be used in connection with this offering.
Other
than the prospectus in electronic format, the information on each of the placement agent’s websites and any information contained
in any other website maintained by the placement agent is not part of the prospectus or the registration statement of which this prospectus
forms a part, has not been approved and/or endorsed by us or either placement agent in its capacity as placement agent and should not
be relied upon by investors.
Certain
Relationships
The
placement agent and its affiliates have and may in the future provide, from time to time, investment banking and financial advisory services
to us in the ordinary course of business, for which they may receive customary fees and commissions.
Transfer
Agent
The
transfer agent and registrar for our common stock is VStock Transfer, LLC.
Listing
Our
shares of common stock are listed on the NYSE American under the symbol “AZTR.”
Selling
Restrictions
Canada.
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited
investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities
Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and
Ongoing Registrant Obligations. Any resale of the securities must be made in accordance with an exemption from, or in a
transaction not subject to, the prospectus requirements of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus
supplement (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised
by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser
should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars
of these rights or consult with a legal advisor.
Pursuant
to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the placement agents are not required
to comply with the disclosure requirements of NI 33-105 regarding placement agents conflicts of interest in connection with this offering.
European
Economic Area . In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive
(each, a “Relevant Member State”) an offer to the public of any securities may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State of any securities may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in that Relevant Member State:
|
● |
to
any legal entity which is a qualified investor as defined in the Prospectus Directive; |
|
● |
to
fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural
or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive,
subject to obtaining the prior consent of the representatives for any such offer; or |
|
● |
in
any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities
shall result in a requirement for the publication by us or any placement agents of a prospectus pursuant to Article 3 of the
Prospectus Directive. |
For
the purposes of this provision, the expression an “offer to the public” in relation to any securities in any Relevant Member
State means the communication in any form and by any means of sufficient information on the terms of the offer and any securities to
be offered so as to enable an investor to decide to purchase any securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC
(and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes
any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive
2010/73/EU.
Israel.
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed
with or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed
only at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities
Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment
advisors, members of the Tel Aviv Stock Exchange, placement agents, venture capital funds, entities with equity in excess of NIS 50 million
and “qualified individuals”, each as defined in the Addendum (as it may be amended from time to time), collectively referred
to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of
their clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they
fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
United
Kingdom. Each placement agent has represented and agreed that:
|
● |
it
has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the FSMA)
received by it in connection with the issue or sale of the securities in circumstances in which Section 21(1) of the FSMA
does not apply to us; and |
|
● |
it
has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities
in, from or otherwise involving the United Kingdom. |
Switzerland.
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other
stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in
Switzerland. Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly
distributed or otherwise made publicly available in Switzerland.
Neither
this document nor any other offering or marketing material relating to the offering, or the securities have been or will be filed with
or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of securities will
not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of securities has not been and will not be
authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising,
as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its
implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of
interests in collective investment schemes under CISA does not extend to acquirers of securities.
Australia.
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities
and Investments Commission (ASIC), in relation to the offering.
This
prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001
(the Corporations Act) and does not purport to include the information required for a prospectus, product disclosure statement or other
disclosure document under the Corporations Act.
Any
offer in Australia of the securities may only be made to persons (the Exempt Investors) who are “sophisticated investors”
(within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section
708(11) of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so
that it is lawful to offer the securities without disclosure to investors under Chapter 6D of the Corporations Act.
The
securities applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the
date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act
would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant
to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring securities must observe such Australian
on-sale restrictions.
This
prospectus contains general information only and does not take account of the investment objectives, financial situation or particular
needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment
decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances,
and, if necessary, seek expert advice on those matters.
Notice
to Prospective Investors in the Cayman Islands. No invitation, whether directly or indirectly, may be made to the public in the
Cayman Islands to subscribe for our securities.
Taiwan.
The securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes
an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory
Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate
the offering and sale of the securities in Taiwan.
Notice
to Prospective Investors in Hong Kong. The contents of this prospectus have not been reviewed by any regulatory authority in
Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus,
you should obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means
of this prospectus or any document other than to “professional investors” within the meaning of Part I of Schedule 1
of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances
which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong
Kong) (CO) or which do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement,
invitation or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each
case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public
in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or
are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of
the SFO and any rules made thereunder.
Notice
to Prospective Investors in the People’s Republic of China. This prospectus may not be circulated or distributed in
the PRC and the shares may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly
to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph
only, the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.
LEGAL
MATTERS
Greenberg
Traurig, LLP, Irvine, California, will pass upon the validity of the shares of common stock and Pre-Funded Warrants offered hereby. Ellenoff
Grossman & Schole LLP, New York, New York, has acted as counsel for the placement agent in connection with certain legal
matters related to this offering.
EXPERTS
The
financial statements as of and for the fiscal years ended December 31, 2023 and 2022 included in this prospectus have been
so included in reliance on the report of Grassi & Co., CPAs, P.C., an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC permits us to “incorporate by reference” the information and reports we file with it. This means that we can disclose
important information to you by referring to another document. The information that we incorporate by reference is considered to be part
of this prospectus, and later information that we file with the SEC automatically updates and supersedes this information. We incorporate
by reference the documents listed below, except to the extent information in those documents is different from the information contained
in this prospectus, and all future documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act (other
than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items
unless such Form 8-K expressly provides to the contrary) until we terminate the offering of these securities:
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the SEC on March 15, 2024; |
|
|
|
|
● |
Our
Amendment No. 1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the SEC on April 29, 2024; |
|
|
|
|
● |
Our
Quarterly Report on Form 10-Q for the three months ended March 31, 2024 filed with the SEC on May 9, 2024; |
|
|
|
|
● |
Our
Current Reports on Form
8-K filed with the SEC on February 14, 2024 and July 3, 2024; and |
|
|
|
|
● |
The
description of our common stock set forth in our registration statement on Form 8-A12B filed with the SEC on May 16, 2023. |
To the extent that any statement
in this prospectus is inconsistent with any statement that is incorporated by reference and that was made on or before the date of this
prospectus, the statement in this prospectus shall supersede such incorporated statement and the incorporated statement shall not be
deemed, except as modified or superseded, to constitute a part of this prospectus or the registration statement. Statements contained
in this prospectus as to the contents of any contract or other document are not necessarily complete and, in each instance, we refer
you to the copy of each contract or document filed as an exhibit to our various filings made with the SEC.
You
may request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Azitra,
Inc.
21
Business Park Drive,
Branford,
Connecticut 06405
Attention:
Corporate Secretary
Telephone:
(203) 646-6446
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock offered
by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all the information set
forth in the registration statement, some of which is contained in exhibits to the registration statement as permitted by the rules and
regulations of the SEC. For further information with respect to us and our shares of common stock, we refer you to the registration statement,
including the exhibits filed as a part of the registration statement. Statements contained in this prospectus concerning the contents
of any contract or any other document is not necessarily complete. If a contract or document has been filed as an exhibit to the registration
statement, please see the copy of the contract or document that has been filed. Each statement is this prospectus relating to a contract
or document filed as an exhibit is qualified in all respects by the filed exhibit. The SEC maintains an Internet website that contains
reports, proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that website
is www.sec.gov.
In
addition, we file annual, quarterly and current reports and proxy statements and other information with the SEC. Our SEC filings are
available on the SEC’s website at www.sec.gov. These filings are also available free of charge to the public on, or accessible
through, our corporate website at www.azitrainc.com. Our website and the information contained on, or that can be accessed through, our
website is not deemed to be incorporated by reference in, and is not considered part of, this prospectus. You should not rely on any
such information in making your decision whether to purchase our common stock.
We
have not authorized anyone to give you any information or to make any representations about us or the transactions we discuss in this
prospectus other than those contained in this prospectus. If you are given any information or representations about these matters that
is not discussed in this prospectus, you must not rely on that information. This prospectus is not an offer to sell or a solicitation
of an offer to buy securities anywhere or to anyone where or to whom we are not permitted to offer or sell securities under applicable
law.
Up
to 3,115,265 Units
Each
Unit consisting of one Share of Common Stock, or one Pre-Funded Warrant to Purchase one share of Common Stock, and Two Class A Warrants
each to Purchase One Share of Common Stock
Up
to 6,230,530 Shares of Common Stock Underlying the Class A Warrants
Up
to 3,115,265 Shares of Common Stock Underlying the Pre-Funded Warrants
Up
to 124,610 Placement
Agent Warrants to Purchase Shares of Common Stock
Up
to 124,610 Shares of Common Stock Underlying the Placement Agent
Warrants
![](https://www.sec.gov/Archives/edgar/data/1701478/000149315224027219/logo_001.jpg)
PRELIMINARY
PROSPECTUS
Maxim
Group LLC
,
2024
PART
II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses to be incurred in connection with the sale and distribution of our common stock being
registered hereby, all of which will be borne by us (except any placement agent fees and expenses incurred for brokerage, accounting,
tax or legal services or any other expenses incurred in disposing of the shares). All amounts are estimated except the SEC registration
fee and the FINRA filing fee.
Description |
|
Amount |
|
SEC Registration Fee |
|
$ |
4,502.06 |
|
FINRA Filing Fee |
|
|
* |
|
Expenses
of the Placement Agent |
|
|
100,000 |
|
Printing Expenses |
|
|
10,000 |
|
Accounting Fees and Expenses |
|
|
25,000 |
|
Legal Fees and Expenses |
|
|
150,000 |
|
Transfer
and Warrant Agent’s and Registrar’s Fees and Expenses |
|
|
25,000* |
|
Miscellaneous Fees |
|
|
* |
|
Total |
|
$ |
350,000 |
|
Item
14. Indemnification of Directors and Officers.
The
following summary is qualified in its entirety by reference to the complete text of any statutes referred to below and the Second Amended
and Restated Certificate of Incorporation, or Certificate of Incorporation, of Azitra, Inc., a Delaware corporation.
Section
145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person’s conduct was unlawful.
In
the case of an action by or in the right of the corporation, Section 145 of the DGCL permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by reason of
the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with such action, suit
or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court
shall deem proper.
Section
145 of the DGCL also permits a Delaware corporation to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation
would have the power to indemnify such person against such liability under Section 145 of the DGCL.
Our
Certificate of Incorporation states that to the fullest extent permitted by the DGCL our directors shall not be personally liable to
us or to our stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the date hereof
to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors
shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Our
Certificate of Incorporation requires us, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement
of expenses to) our directors and officers, and authorizes us, to the fullest extent permitted by applicable law, to provide indemnification
of (and advancement of expenses to) to other employees and agents (and any other persons to which the DGCL permits us to provide indemnification)
through bylaw provisions, agreements with such directors, officers, employees, agents or other persons, vote of stockholders or disinterested
directors or otherwise, subject only to limits created by the DGCL with respect to actions for breach of duty to our corporation, our
stockholders and others.
Our
Certificate of Incorporation provides that we shall, to the maximum extent and in the manner permitted by the DGCL, indemnify each of
our directors, officers and all other persons we have the power to indemnify under Section 145 of the DGCL against expenses (including
attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was a director of the Company. We may maintain insurance, at our expense, to protect
the Company and any of our directors, officers, employees or agents against any such expense, liability or loss, whether or not we have
the power to indemnify such person.
We
have entered into indemnification agreements with each of our directors and executive officers that may be broader than the specific
indemnification provisions contained in the DGCL. These indemnification agreements require us, among other things, to indemnify our directors
and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also
require us to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit,
or proceeding. We believe that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive
officers.
Prior
to the closing of this offering, we plan to enter into an underwriting agreement, which will provide that the underwriters are obligated,
under some circumstances, to indemnify our directors, officers and controlling persons against specified liabilities.
Item
15. Recent Sales of Unregistered Securities.
Issuances
of capital stock
The
following list sets forth information regarding all unregistered securities sold by us over the three-year period preceding the date
of the prospectus that forms a part of this registration statement.
In
January 2022, we sold to one investor an unsecured convertible promissory note in the principal amount of $1,000,000. In January 2023,
the principal amount of the note, along with all accrued interest, was converted into 23,432 shares of our Series B convertible preferred
stock. Subsequently, these shares were converted into common stock upon the consummation of the IPO.
In
September 2022, we conducted the placement of our unsecured convertible promissory notes in the aggregate principal amount of $4.35 million
to five investors. The principal amount of the notes, along with all accrued and unpaid interest thereunder, converted into 61,534
shares of our common stock upon the consummation of the IPO.
No
underwriters were involved in the foregoing issuances of securities. We believe the offers, sales and issuances of the above securities
by us were exempt from registration under the Securities Act by virtue of Section 4(a)(2) of the Securities Act and Rule 506 thereunder
as transactions not involving a public offering. All of the investors were accredited investors as such term is defined in Rule 501 under
the Securities Act. The recipients of the securities in each of these transactions represented their intentions to acquire the securities
for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed
upon the stock certificates, notes and warrants issued in these transactions. All recipients had adequate access, through their relationships
with us, to information about our Company. The sales of these securities were made without any general solicitation or advertising.
Item
16. Exhibits and Financial Statement Schedules.
Exhibit
No. |
|
Description
of Document |
|
Method
of Filing |
|
|
|
|
|
1.1 |
|
Form of Placement Agent Agreement. |
|
Electronically
filed herewith. |
|
|
|
|
|
3.1 |
|
Second
Amended and Restated Certificate of Incorporation of the Registrant. |
|
Incorporated
herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 21, 2023 (File No. 001-41705). |
|
|
|
|
|
3.2 |
|
Second
Amended and Restated Bylaws of the Registrant. |
|
Incorporated
herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on June 21, 2023 (File No. 001-41705). |
|
|
|
|
|
3.3 |
|
Certificate of Amendment to Second Amended and Restated Certificate of Incorporation of the Registrant. |
|
Incorporated herein by reference to Exhibit 3.3 to the Company’s Registration
Statement on Form S-3 filed on July 1, 2024 (File No. 280648). |
|
|
|
|
|
4.1 |
|
Specimen
Certificate representing shares of Common Stock. |
|
Incorporated
herein by reference to Exhibit 4.1 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
4.2 |
|
Form
of Warrant issued to private placement investors. |
|
Incorporated
herein by reference to Exhibit 4.2 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
4.3 |
|
Form
of Representative’s Warrant dated June 20, 2023 issued to ThinkEquity LLC. |
|
Incorporated
herein by reference to Exhibit 4.3 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
4.5 |
|
Form of Representative’s Warrant dated February 13, 2024 issued to ThinkEquity LLC. |
|
Incorporated herein by reference to Exhibit 1.1 to the Company’s Current
Report on Form 8-K filed on February 14, 2024. |
|
|
|
|
|
4.6 |
|
Form of Class A Warrant to be issued in this offering. |
|
Electronically filed herewith. |
|
|
|
|
|
4.7 |
|
Form of Pre-Funded Common Warrant to be issued in this offering |
|
Electronically filed herewith. |
|
|
|
|
|
4.8 |
|
Form of Placement agent’s warrant to be issued in this offering |
|
Electronically
filed herewith. |
|
|
|
|
|
4.9 |
|
Form of Warrant Agent Agreement to be entered into
in connection with this offering between the Registrant and VStock Transfer, LLC |
|
Electronically filed herewith. |
|
|
|
|
|
5.1 |
|
Opinion of Greenberg Traurig, LLP. |
|
Electronically
filed herewith. |
|
|
|
|
|
10.1+ |
|
Azitra,
Inc. 2016 Stock Incentive Plan. |
|
Incorporated
herein by reference to Exhibit 10.2 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
10.2+ |
|
Azitra,
Inc. 2023 Stock Incentive Plan. |
|
Incorporated
herein by reference to Exhibit 10.5 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
10.3+ |
|
Executive
Employment Agreement dated April 22, 2021 between the Registrant and Francisco D. Salva. |
|
Incorporated
herein by reference to Exhibit 10.4 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
10.4+ |
|
Executive Employment Agreement dated July 5, 2023 between the Registrant and Travis Whitfill. |
|
Incorporated herein by reference to Exhibit 10.4 to the Company’s
Form S-1 filed on January 19, 2024 (File No. 333-276598). |
|
|
|
|
|
10.5+ |
|
Form
of Indemnity Agreement between the Registrant and each of its directors and executive officers. |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
10.6 |
|
Second
Amended and Restated Investors’ Rights Agreement dated September 10, 2020 between the Registrant and each of the investors
named therein. |
|
Incorporated
herein by reference to Exhibit 10.3 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
10.7 |
|
Form of Securities Purchase Agreement to be entered into by the Registrant in this offering |
|
Electronically
filed herewith. |
|
|
|
|
|
21.1 |
|
List
of Subsidiaries of the Registrant. |
|
Incorporated
herein by reference to Exhibit 21.1 to the Company’s Form S-1 filed on June 13, 2023 (File No. 333-269876). |
|
|
|
|
|
23.1 |
|
Consent of Greenberg Traurig, LLP (included in Exhibit 5.1). |
|
Electronically
filed herewith. |
|
|
|
|
|
23.2 |
|
Consent of Grassi & Co., CPAs, P.C., Independent Registered Public Accounting Firm. |
|
Electronically filed herewith. |
|
|
|
|
|
24.1 |
|
Power of Attorney (included on signature page). |
|
Electronically filed herewith. |
|
|
|
|
|
107 |
|
Filing Fee Table. |
|
Filed electronically
herewith. |
+
Indicates management compensatory plan, contract or arrangement.
(b)
Financial Statement Schedules.
All
schedules have been omitted because they are not required or are not applicable.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates
in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The
undersigned registrant undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus as filed as part
of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared
effective.
(2)
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Branford, State of Connecticut, on July 15, 2024.
|
AZITRA,
INC. |
|
|
|
/s/
Francisco D. Salva |
|
Francisco
D. Salva |
|
Chief
Executive Officer and Director |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Francisco D. Salva, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement, any subsequent registration statements pursuant to Rule
462 of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Francisco D. Salva |
|
President, |
|
|
Francisco
D. Salva |
|
Chief
Executive Officer and Director
(Principal
Executive Officer) |
|
July
15, 2024 |
|
|
|
|
|
/s/
Norman Staskey |
|
Chief
Financial Officer, |
|
|
Norman
Staskey |
|
Treasurer
and Secretary
(Principal
Financial and Accounting Officer) |
|
July
15, 2024 |
|
|
|
|
|
/s/
Travis Whitfill |
|
|
|
|
Travis
Whitfill |
|
Chief
Operating Officer and Director |
|
July
15, 2024 |
|
|
|
|
|
/s/
Andrew McClary |
|
|
|
|
Andrew
McClary |
|
Director |
|
July
15, 2024 |
|
|
|
|
|
/s/
Barbara Ryan |
|
|
|
|
Barbara
Ryan |
|
Director |
|
July
15, 2024 |
|
|
|
|
|
/s/
John Schroer |
|
|
|
|
John
Schroer |
|
Director |
|
July
15, 2024 |
Exhibit
1.1
PLACEMENT
AGENCY AGREEMENT
[ ], 2024
Maxim
Group LLC
300
Park Avenue, 16th Floor
New
York, NY 10022
Ladies
and Gentlemen:
Subject to the terms and conditions
herein (this “Agreement”), Azitra Inc., a Delaware corporation (the “Company”), hereby agrees to
sell up to an aggregate of $[ ] of registered units (the “Units”) of the Company, each Unit consisting of either (a)(i)
one share (the “Shares”) of the Company’s common stock $0.0001 par value per share (the “Common Stock”)
and (ii) two Class A Warrants to purchase two shares of Common Stock (the “Class A Warrants” or the
“Warrants”) (the “Common Units”) or (b) (i) one pre-funded common stock purchase warrant to purchase
one share of Common Stock (the “Pre-Funded Warrants”) and (ii) two Class A Warrants (the “Pre-Funded
Unit”) (the shares of Common Stock underlying the Pre-Funded Warrants and the Warrants, the “Warrant Shares”,
and the Shares, the Pre-Funded Warrants, the Warrants and the Warrant Shares, the “Securities”) directly to various
investors (each, an “Investor” and, collectively, the “Investors”) through Maxim Group LLC as placement
agent (the “Placement Agent”). The documents executed and delivered by the Company and the Investors in connection
with the Offering (as defined below), including, without limitation, a securities purchase agreement (the “Purchase Agreement”),
shall be collectively referred to herein as the “Transaction Documents.” The purchase price to the Investors for each
Common Unit is $[ ], the purchase price to the Investors for each Pre-Funded Unit is $[ ], the exercise price
to the Investor for each share of Common Stock issuable upon exercise of the Pre-Funded Warrants is $0.0001 and the exercise price
to the Investors for each share of Common Stock issuable upon exercise of the Class A Warrants is initially $[ ].
The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with
the Offering.
The
Company hereby confirms its agreement with the Placement Agent as follows:
Section
1. Agreement to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Securities pursuant to the Company’s registration statement on Form S-1 (File No. 333-[ ]) (and including any registration
statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act) (the “Registration
Statement”), with the terms of such offering (the “Offering”) to be subject to market conditions and negotiations
between the Company, the Placement Agent and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis
and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof,
in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below)
be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent
shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with
respect to any prospective offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities
and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and
delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing
occurs, a “Closing Date”). The Closing of the issuance of the Securities shall occur via “Delivery Versus Payment”,
i.e., on the Closing Date, the Company shall issue the Securities directly to the account designated by the Placement Agent and, upon
receipt of such Securities, the Placement Agent shall electronically deliver such Securities to the applicable Investor and payment shall
be made by the Placement Agent (or its clearing firm) by wire transfer to the Company. As compensation for services rendered, on each
Closing Date, the Company shall pay to the Placement Agent the consideration set forth below:
(i) A
cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the
“Closing”).
(ii)
A common stock purchase warrant, issued to Maxim Partners LLC (or other designees of the Placement Agent) (the “Placement Agent’s
Warrant”) to purchase a number of shares of Common Stock equal to four percent (4.0%) of the total number of Shares and Pre-Funded
Warrants sold in the Offering. The Placement Agent’s Warrants will be non-exercisable for six (6) months after the effective date
of the Registration Statement and will expire five (5) years after such date. The Placement Agent’s Warrants will be exercisable
at a price equal to 125% of the Common Units in connection with the Offering. The Placement Agent’s Warrants shall not be redeemable.
The Company will register the shares of Common Stock underlying the Placement Agent’s Warrants under the Securities Act and will
file all necessary undertakings in connection therewith. The Placement Agent’s Warrants may not be sold, transferred, assigned,
pledged or hypothecated for a period of 180 days from the commencement of sales of the Offering, except that they may be assigned,
in whole or in part, to any officer, partner, registered person or affiliate of the Placement Agent and to members of the
selling group. The Placement Agent’s Warrants may be exercised as to all or a lesser number of shares of Common Stock, will provide
for cashless exercise and will contain provisions for one demand registration of the sale of the underlying shares of Common Stock and
unlimited “piggyback” registration rights for a period of five years after the commencement of sales of the Offering at the Company’s expense.
The Placement Agent’s Warrants shall further provide for limited, customary anti-dilution protections resulting from stock dividends,
splits and recapitalizations.
(b) The
term of the Placement Agent’s exclusive engagement will be as set forth in the Engagement Agreement (as defined below). Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein
and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement,
and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(g)(4)(A), will survive any expiration or
termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates
to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with
Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency
or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed
under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Section
2. Representations, Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement
Agent as of the date hereof, and as of each Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement under the Securities Act, which was initially filed on [ ], 2024, as amended, and declared effective on [ ], 2024 for the registration
of the Securities under the Securities Act. Following the determination of pricing among the Company and the prospective Investors introduced
to the Company by the Placement Agent, the Company will file with the Commission pursuant to Rules 430A and 424(b) under the Securities
Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a final
prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof and will advise
the Placement Agent of all further information (financial and other) with respect to the Company required to be set forth therein. Such
registration statement, at any given time, including the exhibits thereto filed at such time, as amended at such time, is hereinafter
called the “Registration Statement”; such prospectus in the form in which it appears in the Registration Statement
at the time of effectiveness is hereinafter called the “Preliminary Prospectus”; and the final prospectus, in the
form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including the Preliminary Prospectus as it may
be amended or supplemented) is hereinafter called the “Final Prospectus.” The Registration Statement at the time it
originally became effective is hereinafter called the “Original Registration Statement.” Any reference in this Agreement
to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”), if any, which
were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any given time, as
the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date
of the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time
of Sale Disclosure Package” means the Preliminary Prospectus, any securities purchase agreement between the Company and the
Investors, the final terms of the Offering provided to the Investors (orally or in writing) and any issuer free writing prospectus as
defined in Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”), if any, that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The term “any Prospectus”
shall mean, as the context requires, the Preliminary Prospectus, the Final Prospectus, and any supplement to either thereof. The Company
has not received any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration
Statement or the use of the Preliminary Prospectus or any prospectus supplement or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement, as amended (and any further documents to be filed with the Commission) contains all exhibits and
schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time
it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. The Preliminary Prospectus and the Final Prospectus, each as of its respective date, comply or will comply in
all material respects with the Securities Act and the applicable Rules and Regulations. Each of the Preliminary Prospectus and the Final
Prospectus, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder, and none of such documents, when they
were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein (with respect to Incorporated Documents incorporated by reference in the Preliminary Prospectus or Final Prospectus),
in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration Statement reflecting
any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information
set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction Documents, there are no
documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed
as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. Except for this Agreement and the
Transaction Documents, there are no contracts or other documents required to be described in the Preliminary Prospectus or Final Prospectus,
or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to each
Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale Disclosure
Package.
(d) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Company’s
Board of Directors (the “Board of Directors”) or the Company’s shareholders in connection therewith other than
in connection with the Required Approvals (as defined in the Purchase Agreement). This Agreement has been duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium 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 and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(e)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) except as
disclosed in the Preliminary Prospectus, conflict with, or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both)
of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding
to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except
in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect,
as defined in the Securities Purchase Agreement.
(f) Certificates.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement Agent shall
be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(g) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations and warranties
and hereby consents to such reliance.
(h) Forward-Looking
Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(i) Statistical
or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference in the Time
of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes to be reliable
and accurate, and such data agree with the sources from which they are derived.
(j) Certain
Fees; FINRA Affiliations. Except as set forth in the Registration Statement and Prospectus, no brokerage or finder’s fees
or commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the
Transaction Documents. There are no other arrangements, agreements or understandings of the Company or, to the Company’s
knowledge, any of its shareholders that may affect the Placement Agent’s compensation, as defined by FINRA. Other than
payments to the Placement Agent for this Offering or as set forth in the Registration Statement and Prospectus, the Company has not
made and has no agreements, arrangements or understanding to make any direct or indirect payments (in cash, securities or otherwise)
to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the
Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member participating in
the offering as defined in FINRA Rule 5110 (a “Participating Member”); or (iii) any person or entity that has any direct
or indirect affiliation or association with any Participating Member, within the 180-day period preceding the initial filing of the
Registration Statement through the 60-day period after the Effective Date. None of the net proceeds of the Offering will be paid by
the Company to any Participating Member or its affiliates, except as specifically authorized herein. To the Company’s
knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s Common Stock or Common Stock
Equivalents (as defined in the Securities Purchase Agreement) has any direct or indirect affiliation or association with any
Participating Member in the Offering. Except for securities purchased on the open market, no Company Affiliate is an owner of stock
or other securities of any Participating Member. To the Company’s knowledge, no Company Affiliate has made a subordinated loan
to any Participating Member. No proceeds from the sale of the Securities (excluding Placement Agent compensation as disclosed in the
Registration Statement and the Prospectus) will be paid to any Participating Member, any persons associated with a Participating
Member or an affiliate of a Participating Member. Except as disclosed in the Prospectus, the Company has not issued any warrants or
other securities or granted any options, directly or indirectly, to the Placement Agent within the 180-day period prior to the
initial filing date of the Prospectus. To the Company’s knowledge, except for securities issued to the Placement Agent as
disclosed in the Prospectus, no person to whom securities of the Company have been privately issued within the 180-day period prior
to the initial filing date of the Prospectus is a Participating Member, is a person associated with a Participating Member or is an
affiliate of a Participating Member. To the Company’s knowledge, no Participating Member in the Offering has a conflict of
interest with the Company. For this purpose, a “conflict of interest” exists when a Participating Member, the parent or
affiliate of a Participating Member or any person associated with a Participating Member in the aggregate beneficially own 10% or
more of the Company’s outstanding subordinated debt or common equity, or 10% or more of the Company’s preferred equity.
“FINRA member participating in the Offering” includes any associated person of a Participating Member in the Offering,
any member of such associated person’s immediate family and any affiliate of a Participating Member in the Offering. When used
in this Section 3.1(j) the term “affiliate of a FINRA member” or “affiliated with a FINRA member” means an
entity that controls, is controlled by or is under common control with a FINRA member. The Company will advise the Placement Agent
and its legal counsel, Ellenoff Grossman & Schole LLP (the “Placement Agent Counsel”) if it learns that any
officer, director or owner of 10% or more of the Company’s outstanding Common Stock or Common Stock Equivalents is or becomes
an affiliate or associated person of a Participating Member.
(k)
Board of Directors. The Board of Directors is comprised of the persons set forth under the heading of the Company’s Annual
Report on Form 10-K captioned “Directors, Executive Officers and Corporate Governance.” The qualifications of the persons
serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002 and the rules
promulgated thereunder applicable to the Company and the rules of the NYSE American (the “Trading Market”).
In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent” as defined under
the rules of the Trading Market.
(l)
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed
by each of the Company’s directors and officers is true and correct in all respects (other than changes in securities ownership
from the date of such questionnaires) and the Company has not become aware of any information which would cause the information disclosed
in such questionnaires to become inaccurate and incorrect.
(m) Representations,
Warranties and Covenants Incorporated by Reference. Each of the representations, warranties and covenants (together with any related
disclosure schedules thereto) made to the Investors in the Purchase Agreement is hereby incorporated herein by reference (as though fully
restated herein) and is hereby made to, and in favor of, the Placement Agent.
Section
3. Delivery and Payment. Each Closing shall occur at the offices of the Placement Agent Counsel at 1345 Avenue of the Americas,
New York, New York 10105 (or at such other place as shall be agreed upon by the Placement Agent and the Company). Subject to the terms
and conditions hereof, at each Closing payment of the purchase price for the Securities sold on such Closing Date shall be made by Federal
Funds wire transfer, against delivery of such Securities, and such Securities shall be registered in such name or names and shall be
in such denominations, as the Placement Agent may request at least one business day before the time of purchase (as defined below).
Deliveries
of the documents with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All
actions taken at a Closing shall be deemed to have occurred simultaneously.
Section
4. Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus has been filed and will furnish
the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the
date of any Prospectus and for so long as the delivery of a prospectus is required in connection with the Offering. The Company will
advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration
Statement or to amend or supplement any Prospectus or for additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any
Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Preliminary
Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment
to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of
the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or a Prospectus or for additional information, (iii) of
the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Securities for offering
or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery
to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments
or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in
this Section 4(a) that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement or
the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The Company shall use its best efforts
to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order
or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order
at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration statement
declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b),
430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and
will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner
by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities for
sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not
be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and
other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably
request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c)
Amendments and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder during the Prospectus Delivery Period, so as to permit the completion
of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the
period in which a prospectus is required by law to be delivered in connection with the distribution of Securities contemplated by the
Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of
which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary
to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances
under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated
Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly
prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment
to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary
in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances
under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or
any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the
Incorporated Documents or any Prospectus in connection with the Offering, the Company will furnish the Placement Agent with a copy of
such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
(d) Copies
of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during the period
beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any Prospectus or prospectus
supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent, make
any offer relating to the Securities that would constitute a Company Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission
or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents in writing
to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that it shall (i)
treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements of Rule 164
and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(f) Transfer
Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Shares.
(g) Earnings
Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event not later
than 18 months after the last Closing Date, the Company will make generally available to its security holders and to the Placement Agent
an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date, that satisfies the
provisions of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission
and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner
required by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent or the Investors
deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably acceptable to the Placement
Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third party beneficiary of, the representations
and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement with Investors in the Offering.
(j) No
Manipulation of Price. Neither the Company, nor to its knowledge, any of its employees, directors or shareholders, has taken
or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or
result in, under the Exchange Act, or otherwise stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of
Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior
written consent.
(l) Announcement
of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its
involvement with the Offering.
(m) Reliance
on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research
Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly, of favorable
or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s selection
as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing favorable
or any research coverage of the Company. In accordance with FINRA Rule 2241(b)(2), the parties acknowledge and agree that the Placement
Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change
research, a rating or a price target, to the Company or inducement for the receipt of business or compensation. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to
any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to the Company by the Placement Agent’s investment
banking divisions. The Company acknowledges that the Placement Agent is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
position in debt or equity securities of the Company.
(o) Subsequent
Equity Sales.
(i) From
the date hereof until three (3) months after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents or (ii) file any registration
statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement on Form S-8 in connection
with any employee benefit plan, in each case without prior written consent of the Placement Agent.
(ii) From
the date hereof until six (6) months after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i)
issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive
additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon
and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such
debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after
the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities
at a future determined price; provided, however, that three (3) months after the Closing Date, the issuance of shares of
Common Stock in an “at the market” offering with the Placement Agent as sales agent shall not be deemed a Variable Rate Transaction.
Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be
in addition to any right to collect damages.
(iii) Notwithstanding
the foregoing, this Section 4(o) shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be
an Exempt Issuance. An “Exempt Issuance” means the issuance of (a) Common Stock or equity awards to employees, officers
or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services
rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other
securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with automatic price resets, stock
splits, adjustments or combinations as set forth in such securities) or to extend the term of such securities and (c) securities issued
pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that
such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require
or permit the filing of any registration statement in connection therewith during the six month period following the Closing Date, and
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company
additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
(p) Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party
to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific
performance of the terms of such Lock-Up Agreement.
(q) FINRA.
The Company shall advise the Placement Agent (who shall make an appropriate filing with FINRA) if it is aware that any officer, director,
10% or greater shareholder of the Company or Person that received the Company’s unregistered equity securities in the past 180
days is or becomes an affiliate or associated person of a FINRA member firm prior to the earlier of the termination of this Agreement
or the 60-day period after the Effective Date
Section
5. Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to
the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date
hereof and as of each Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations
hereunder on and as of such dates, and to each of the following additional conditions:
(a) Accountants’
Comfort Letters. On the date hereof, the Placement Agent shall have received, and the Company shall have caused to be delivered to
the Placement Agent, a letter from Grassi & Co., CPAs, P.C. (the current independent registered public accounting firm of the Company),
addressed to the Placement Agent, dated as of the date hereof, in form and substance satisfactory to the Placement Agent. The letter
shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects of the Company from
that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which, in the Placement Agent’s
sole judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable or inadvisable
to proceed with the Offering of the Securities as contemplated by such Prospectus.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with Rule 424(b)) and
“free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed with
the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing or suspending
the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company shall have
been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange; all requests for additional information on the part of the Commission shall have been complied with; and
FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and
each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it
may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the Placement
Agent’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any material
adverse change or development involving a prospective material adverse change in the condition or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus
(“Material Adverse Change”).
(e) Opinion
of Counsels for the Company. The Placement Agent shall have received on each Closing Date (i) the favorable opinion of Greenberg
Traurig, LLP, counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter addressed
to the Placement Agent and in form and substance satisfactory to the Placement Agent, and (ii) the favorable opinion of McCarter &
English, LLP, intellectual property legal counsel to the Company, addressed to the Placement Agent in form and substance satisfactory
to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent shall
be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, the Prospectus,
and this Agreement and to the further effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and
the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued
by any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate,
the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission,
and any Prospectus, contained all material information required to be included therein by the Securities Act and the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the
requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the
case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include any
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date
of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any Prospectus,
there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries taken as
a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that is material
to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary
course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise of outstanding stock
options or warrants or conversion of outstanding preferred stock) or outstanding indebtedness of the Company or any Subsidiary; (e) any
dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or
not insured) to the property of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material
Adverse Effect.
(g) Regulatory
Certificate. On the Closing Date, the Placement Agent shall have received a certificate from the Company’s Chief Executive
Officer with respect to certain regulatory matters, dated as of the Closing Date, addressed to the Placement Agent in form and substance
satisfactory to the Placement Agent.
(h) Bring-down
Comfort Letters. On each Closing Date, the Placement Agent shall have received from Grassi & Co., CPAs, P.C., or such
other independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form and substance satisfactory
to the Placement Agent, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (a) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than two business days
prior to such Closing Date.
(i) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and the
Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Common
Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the Company
have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration or
listing.
(j) Lock-Up
Agreements. On the Closing Date, the Placement Agent shall have received the executed lock-up agreement from each of the Company’s
directors and executive officers and any stockholders holding 5% or more of the Company’s voting securities.
(k) Warrant
Agency Agreement. On the Closing Date the duly executed warrant agency agreement executed by and between the Company and the transfer
agent.
(l) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such information
and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of
the conditions or agreements, herein contained.
If
any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by
the Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution)
and Section 8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section
6. Payment of Expenses. The Company shall be responsible for and pay all expenses relating to the Offering, including, without
limitation, all filing fees and communication expenses relating to the registration of the Securities to be sold in the Offering with
the Commission and the filing of the offering materials with FINRA; all fees and expenses relating to the listing of such Securities
on such stock exchange as the Company and the Placement Agent together determine; all fees, expenses and disbursements relating to background
checks of the Company’s officers and directors; all fees, expenses and disbursements relating to the registration or qualification
of such Securities under the “blue sky” securities laws of such states and other jurisdictions as the Placement Agent may
reasonably designate (including, without limitation, all filing and registration fees, and the fees and disbursements of the Placement
Agent’s counsel at Closing)); all fees and expenses associated with the i-Deal system and NetRoadshow not to exceed $3,000; the
costs of all mailing and printing of the Offering documents (including the transaction documents, any Blue Sky Surveys and, if appropriate,
any Agreement Among Underwriters, Selected Dealers’ Agreement, placement agents’ questionnaire and power of attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Placement
Agent may reasonably deem necessary; the costs and expenses of the public relations firm referred to in the Engagement Letter; the costs
of preparing, printing and delivering certificates representing such Securities; fees and expenses of the transfer agent for such Securities;
stock transfer taxes, if any, payable upon the transfer of securities from the Company to the Placement Agent; the fees and expenses
of the Company’s accountants and the fees and expenses of the Placement Agent and the Company’s legal counsel and other agents
and representatives. Upon the Placement Agent’s request, the Company shall provide funds to pay all such fees, expenses and disbursements
in excess of the advance paid by the Company in accordance with the Engagement Agreement (the “Advance”). For the
sake of clarity, it is understood and agreed that (i) the Company shall be responsible for the Placement Agent’s legal fees, costs
and expenses in connection with the Offering irrespective of whether the Offering is consummated, and (ii) the maximum amount of legal
fees, costs and expenses incurred by the Placement Agent that the Company shall be responsible for shall not exceed $100,000 in the event
of a Closing, and shall not exceed $50,000 in the event that there is not a Closing, inclusive of the Advance.
Section
7. Indemnification and Contribution.
(a)
The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its
affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for
all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are
incurred by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person
is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading (other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating
to an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents)
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant
to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any
such advice, services or transactions; provided, however, that, in the case of clause (ii) only, the Company shall not
be responsible for any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely
from such Indemnified Person’s (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions
or services referred to above or (y) use of any offering materials or information concerning the Company in connection with the offer
or sale of the Securities in the Offering which were not authorized for such use by the Company and which use constitutes gross negligence
or willful misconduct. The Company also agrees to reimburse each Indemnified Person for all Expenses as they are incurred in connection
with enforcing such Indemnified Person’s rights under this Agreement.
(b)
Upon receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall
have the right to assume the defense of any such action including the employment of counsel reasonably satisfactory to
the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties
to any such action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall
have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any action or related actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agent
and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of
fees actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the
Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed
to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by
the Company in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated,
bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty
of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted
solely from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions
or services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services
under or in connection with, this Agreement.
Section
8. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and
other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement
Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent, or
to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Agreement.
Section
9. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed
to the parties hereto as follows:
If
to the Placement Agent to the address set forth above, attention: James Siegal, email: jsiegel@maximgrp.com
With
a copy to:
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, New York 10105
E-mail:
mbernstein@egsllp.com
Attention:
Matthew Bernstein
If
to the Company:
Azitra,
Inc.
21
Business Park Drive
Branford,
Connecticut 06405
E-mail:
taskey@azitrainc.com
Attention:
Norman Staskey
With
a copy to:
Greenberg
Traurig, LLP
18565
Jamboree Road, Suite 500
Irvine,
California 92612
E-mail:
donahued@gtlaw.com
Attention:
Daniel K. Donahue
Any
party hereto may change the address for receipt of communications by giving written notice to the others.
Section
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the
employees, officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal
representative, and no other person will have any right or obligation hereunder.
Section
11. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section
12. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable
to agreements made and to be performed entirely in such State, without regard to the conflicts of laws principles thereof. This Agreement
may not be assigned by either party without the prior written consent of the other party. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect
to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising under
this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and, by
execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally,
the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which the Company
is or may be subject, by suit upon such judgment. If either party to this Agreement shall commence an action or proceeding to enforce
any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.
Section
13. General Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. Notwithstanding anything herein to the contrary,
the Engagement Agreement, dated June 11, 2024 (“Engagement Agreement”), between the Company and the Placement Agent
shall continue to be effective and the terms therein shall continue to survive and be enforceable by the Placement Agent in accordance
with its terms, provided that, in the event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms
of this Agreement shall prevail. This Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. Section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent’s responsibility to the Company
is solely contractual and commercial in nature, (ii) the Placement Agent has acted at arms length, are not agents of, and owe no fiduciary
duties to the Company or any other person, (iii) the Placement Agent owes the Company only those duties and obligations set forth in
this Agreement and (iv) the Placement Agent may have interests that differ from those of the Company. The Company waives to the fullest
extent permitted by applicable law any claims it may have against the Placement Agent arising from a breach or alleged breach of fiduciary
duty in connection with the offering of the Securities.
[The
remainder of this page has been intentionally left blank.]
If
the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
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Very
truly yours, |
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AZITRA,
INC. |
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a
Delaware corporation |
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By: |
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Name: |
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Title: |
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The
foregoing Placement Agency Agreement is hereby confirmed and accepted as of the date first above written.
MAXIM GROUP LLC |
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By:
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Name: |
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Title: |
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Exhibit
4.6
CLASS
A COMMON STOCK PURCHASE WARRANT
AZITRA,
INC.
Warrant Shares:
[_______ |
Issue Date: [ ], 2024 |
THIS
CLASS A COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the Issue Date (the “Initial Exercise Date”) and on or prior to
5:00 p.m. (New York City time) on the five (5) year anniversary of the Initial Exercise Date, provided that, if such date is not a Trading
Day, the immediately following Trading Day (the “Termination Date”) but not thereafter, to subscribe for and purchase
from Azitra, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be
equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security
held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered
holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of
the Warrant Agency Agreement, in which case this sentence shall not apply.
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration
Statement” means the Company’s registration statement on Form S-1 (File No. 333-[ ]).
“Reset
Date” means the date that is 30 calendar days immediately following the Issue Date.
“Reset
Price” means the greater of (i) 100% of the trailing five day VWAP immediately preceding the Reset Date and (ii) $[ ]1
(as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock
splits or other similar events occurring after the Issue Date).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Pl, Woodmere,
NY 11598 and an email address of [_______________], and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Warrant
Agency Agreement” means that certain warrant agency agreement, dated on or about the date of this Warrant, between the Company
and the Warrant Agent.
“Warrant
Agent” means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[_____, subject to adjustment hereunder (the
“Initial Exercise Price”), provided, however, that if on the Reset Date, the Reset Price is less than the Initial
Exercise Price, the Initial Exercise Price shall be decreased to the Reset Price (it being understood that no adjustment shall be
made if the Reset Price is greater than the Initial Exercise Price) (the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant
to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) the Bid Price of the Common Stock on the principal Trading
Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the
Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise
is executed during “regular trading hours” on a Trading Day and is delivered
within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP
on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is
a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section
2(a) hereof after the close of “regular trading hours” on such Trading Day; |
|
(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
|
|
(X) = |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise
were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the
Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The
Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a
participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise and the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant
to Rule 144 under the Securities Act, and otherwise by
physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for
the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the
Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of
Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the
Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the
Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii)
the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company
fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject
to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day
(increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days
(including no Trading Days if the settlement date is the trade date), on the Company’s primary Trading Market with respect to
the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock
dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company
upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including
by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification
of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by
a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately
before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event,
and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price
of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or re-classification.
b) Intentionally
omitted.
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time
the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard
to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,
that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the
Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall
declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property
or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled
to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution,
or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation
in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution
would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such
Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent)
and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto
would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are
permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of
greater than 50% of the outstanding Common Stock or greater than 50% of the voting power of the common equity of the Company, (iv)
the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or
recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted
into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a
reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such
other Person or group acquires greater than 50% of the outstanding shares of Common Stock or greater than 50% of the voting power of
the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation
in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or
of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section
2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate
Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If
holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant
following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the
Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with,
or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the
applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the
Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such
Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control,
including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any
Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the
Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders
of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental
Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any
consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the
Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.
“Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained
from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of
the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S.
Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date, (B) an expected volatility equal to the 100 day volatility as obtained from the HVT function
on Bloomberg as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental
Transaction, (C) at the election of the Holder, the underlying price per share used in such calculation shall be based on any of the
following (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any,
being offered in such Fundamental Transaction, (ii) the VWAP immediately preceding the public announcement of the applicable
contemplated Fundamental Transaction or (iii) the consummation of the applicable Fundamental Transaction, if earlier, (D) a
remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire
transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the
Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume
in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this
Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this
Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity)
equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations
on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price
hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such
Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such
Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and
after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other
Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or
Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company,
may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of
the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the
Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the
avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether
the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental
Transaction occurs prior to the Initial Exercise Date.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a
Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such
notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during
the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company or the Warrant Agent, as the case may be, shall register this Warrant, upon records to be maintained
by the Company or Warrant Agent, as applicable, for that purpose (the “Warrant Register”), in the name of the record
Holder hereof from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice
to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued
as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the
Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares
in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created
by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Intentionally
omitted.
f)
Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether
brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party
shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or
proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or proceeding.
g)
Restrictions. The Holder acknowledges that
the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise,
will have restrictions upon resale imposed by state and federal securities laws.
h)
Nonwaiver and Expenses. No course of dealing
or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice
the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company willfully and knowingly
fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the
Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
i) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier
service, addressed to the Company, at 21 Business Park Drive, Branford, CT 06045 , Attention: Chief Financial Officer, email
address: staskey@azitrainc.com , or such other email address or address as the Company may specify for such purposes by notice to
the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing
and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the
e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is
delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the
next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set
forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the
second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
j)
Limitation of Liability. No provision hereof,
in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein
of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
k)
Remedies. The Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance
that a remedy at law would be adequate.
l)
Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors
and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended
to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
m)
Amendment. This Warrant may be modified or
amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder or the beneficial owner
of this Warrant, on the other hand.
n)
Severability. Wherever possible, each provision
of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant
shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
o)
Headings. The headings used in this Warrant
are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
p)
Warrant Agency Agreement. If this Warrant
is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the Warrant Agency Agreement. To
the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement, the provisions of this
Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
AZITRA,
INC.
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print)
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Phone
Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
|
Holder’s
Signature:__________________ |
|
Holder’s
Address:___________________ |
|
Exhibit
4.7
PRE-FUNDED
COMMON STOCK PURCHASE WARRANT
AZITRA,
INC.
Warrant
Shares: [_______ |
Initial
Exercise Date: [_______, 2024 |
THIS
PRE-FUNDED COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) until this Warrant is exercised in
full (the “Termination Date”) but not thereafter, to subscribe for and purchase from Azitra, Inc., a Delaware corporation
(the “Company”), up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”)
of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security held in book-entry form and the Depository
Trust Company or its nominee (“DTC”) shall initially be the sole registered holder of this Warrant, subject to a Holder’s
right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency Agreement, in which case this sentence
shall not apply.
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration
Statement” means the Company’s registration statement on Form S-1 (File No. 333-[ ]).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Pl, Woodmere,
NY 11598 and an email address of [_______________], and any successor transfer agent of the Company.
“Underwriting
Agreement” means the underwriting agreement, dated as of [ ], 2024, among the Company and Maxim Group LLC as representative
of the underwriters named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Warrant
Agency Agreement” means that certain warrant agency agreement, dated on or about the Initial Exercise Date, between the Company
and the Warrant Agent.
“Warrant
Agent” means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share,
was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the
nominal exercise price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise
of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise
price under any circumstance or for any reason whatsoever[, including in the event this Warrant shall not have been exercised prior to
the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
|
(A) |
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the Bid Price of the Common
Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours”
on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of
Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
|
|
|
|
|
(B) |
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
|
|
|
(X) |
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date
that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise and (ii) the number of Trading
Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of
delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject
to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not
as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable
Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery
Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise.
The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding
and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a
number of Trading Days (including no Trading Days if the settlement date is the trade date), on the Company’s primary Trading Market
with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with
respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may
be delivered at any time after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares
subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant
Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless
exercise) is received by such Warrant Share Delivery Date.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Intentionally omitted.
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation).
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than 50% of the outstanding
Common Stock or greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in
one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires greater than 50% of the outstanding shares of Common Stock
or greater than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then,
upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in
writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents
with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a
Fundamental Transaction occurs prior to the Initial Exercise Date.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a
Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such
notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company or the Warrant Agent, as the case may be, shall register this Warrant, upon records to be maintained
by the Company or Warrant Agent, as applicable, for that purpose (the “Warrant Register”), in the name of the record
Holder hereof from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice
to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at [___________], Attention: [___________], email address: [___________], or such other
email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications
or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally
recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books
of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i)
the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior
to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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AZITRA,
INC. |
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To:
AZITRA, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _____________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print) |
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Phone
Number:
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature: ________________________________ |
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Holder’s
Address: ________________________________ |
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Exhibit
4.8
PLACEMENT
AGENT’S PURCHASE WARRANT
AZITRA,
INC.
Warrant
Shares: |
Initial
Exercise Date: [___] |
|
Issue
Date: [___] |
This
PLACEMENT AGENT’S PURCHASE WARRANT (the “Warrant”) certifies that, for value received, ____ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date referred to above as the Initial Exercise Date (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on [___], 2029 (the “Termination Date”) but not thereafter, to subscribe
for and purchase from Azitra, Inc., a Delaware corporation (the “Company”), up to ____ shares (as subject to adjustment
hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Placement
Agency Agreement (the “Placement Agency Agreement”), dated [___], 2024, between the Company and Maxim Group LLC, as
placement agent.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy or PDF copy submitted by email (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States
bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original
Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of
Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised
in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the
date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a
portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $[___], subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
|
(A) |
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise
is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)
of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the Bid Price of the Common Stock on the
principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day
and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of
such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof
after the close of “regular trading hours” on such Trading Day; |
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(B) |
= |
the Exercise Price of this Warrant, as adjusted
hereunder; and |
|
(X) |
= |
the number of Warrant Shares that would be
issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise
rather than a cashless exercise. |
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock are then listed
or quoted on The New York Stock Exchange, the NYSE American or any tier of The Nasdaq Stock Market (each, a “Trading Market”),
the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which
the Common Stock are then listed or quoted as reported by Bloomberg L.P. (“Bloomberg”) (based on a trading day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock are listed or quoted on the OTCQB or OTCQX
(each as operated by OTC Markets Group, Inc., or any successor market), the volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock are not then listed or quoted for trading
on the OTCQB or OTCQX Markets and if prices for the Common Stock are then reported in the OTC Pink Market published by OTC Markets Group
Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the
Common Stock so reported, or (d) in all other cases, the fair market value of a Common Stock as determined by an independent appraiser
selected in good faith by the Board of Directors of the Company and reasonably acceptable to the Holder, the fees and expenses of which
shall be paid by the Company.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the
Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The
Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a
participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise and the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant
to Rule 144 under the Securities Act, and otherwise by
physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for
the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the
Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of
Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the
Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the
Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii)
the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company
fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject
to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day
(increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days
(including no Trading Days if the settlement date is the trade date), on the Company’s primary Trading Market with respect to
the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is
delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the
intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation).
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than
50% of the outstanding Common Stock or greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly
or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme
of arrangement) with another Person or group of Persons whereby such other Person or group acquires greater than 50% of the outstanding
shares of Common Stock or greater than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary,
in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option,
exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the
date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder
an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date
of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within
the Company’s control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive
from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value
of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection
with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the
holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental
Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which
Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes
Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function
on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction
for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time
between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected
volatility equal to the 100 day volatility as obtained from the HVT function on Bloomberg as of the Trading Day immediately following
the public announcement of the applicable contemplated Fundamental Transaction, (C) at the election of the Holder, the underlying price
per share used in such calculation shall be based on either of the following, (i) the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the VWAP immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction, or (iii)or the consummation of the applicable
Fundamental Transaction, if earlier, (D) a remaining option time equal to the time between the date of the public announcement of the
applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes
Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business
Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor
entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in
writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents
with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a
Fundamental Transaction occurs prior to the Initial Exercise Date.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (and all of its Subsidiaries, taken as a whole)
is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or
email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least
20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the
date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants
are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected
to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall
not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this
Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise
this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except
as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Pursuant to FINRA Rule 5110(e)(1), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant
shall be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call
transaction that would result in the effective economic disposition of the securities by any person for a period of 180 days immediately
following the commencement of sales of the offering pursuant to which this Warrant is being issued, except as permitted under FINRA Rule
5110(e)(2). Subject to the foregoing restriction, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by or on behalf of the Company for that
purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem
and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
d)
Representation by Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and,
upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or
for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Registration Rights.
a)
To the extent the Company does not maintain an effective registration statement for the Warrant Shares and in the further event that
the Company files a registration statement with the Securities and Exchange Commission covering the sale of its shares of Common Stock
(other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback”
registration would be inappropriate), then, for a period of five (5) years from the commencement of sales of the Offering, the Company
shall give written notice of such proposed filing to the Holder as soon as practicable but in no event less than ten (10) days before
the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended
method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the
Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing
within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant
Shares to be included in such registration and shall use its commercially reasonable efforts to cause the managing underwriter or underwriters
of a proposed underwritten offering to permit the Warrant Shares requested to be included in a Piggyback Registration on the same terms
and conditions as any similar securities of the Company and to permit the sale or other disposition of such Warrant Shares in accordance
with the intended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration
that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters
selected for such Piggyback Registration. Furthermore, each Holder must provide such information as reasonably requested by the Company
(which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations
promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such Holder from the
registration statement.
b)
In addition, to the extent the Company does not maintain an effective registration statement for the Warrant Shares, for a period of
five (5) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration
of the Warrant Shares at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes
applicable to the sale of the Warrant Shares, and fees and disbursements of counsel for the Holder) (the “Demand Registration”).
In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares.
All Holders of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or
underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand
Registration. Furthermore, each Holder must provide such information as reasonably requested by the Company (which information shall
be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder)
to be included in the registration statement timely or the Company may elect to exclude such Holder from the registration statement.
c)
Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s
rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration.
Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a
Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the
Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement
to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective,
because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction
involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for
preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act,
then the Company shall have the right to defer taking action with respect to such Demand Registration or withdraw a related registration
statement for a period of not more than forty-five (45) calendar days; provided, however, that the Company may not invoke this right
more than twice in any twelve (12) month period or during the twelve (12) month period prior to the Termination Date.
Section
6. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
i.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock
a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
ii.
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may
be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
iii.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law; Venue. This Warrant shall be deemed to have been executed and delivered in New York and both this Warrant and the
transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect, and in all other respects by
the laws of the State of New York applicable to agreements wholly performed within the borders of such state and without regard to the
conflicts of laws principals thereof (other than Section 5-1401 of The New York General Obligations Law). Each of the Holder and the
Company: (a) agrees that any legal suit, action or proceeding arising out of or relating to this Warrant and/or the transactions contemplated
hereby shall be instituted exclusively in the Supreme Court of the State of New York, New York County, or in the United States District
Court for the Southern District of New York, (b) waives any objection which it may have or hereafter to the venue of any such suit, action
or proceeding, and (c) irrevocably consents to the jurisdiction of Supreme Court of the State of New York, New York County, or in the
United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the Holder and the
Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding
in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New
York and agrees that service of process upon the Company mailed by certified mail to the Company’s address or delivered by Federal
Express via overnight delivery shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Holder mailed by certified mail to the Holder’s address or delivered by Federal
Express via overnight delivery shall be deemed in every respect effective service process upon the Holder, in any such suit, action or
proceeding. THE HOLDER (ON BEHALF OF ITSELF, ITS SUBSIDIARIES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE
EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT HOLDER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS WARRANT AND THE TRANSACTIONS CONTEMPLATED BY THIS WARRANT.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided hereunder shall be made in accordance with the
Placement Agency Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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AZITRA,
INC.
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By:
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To:
AZITRA, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _________________________________________________________________
_____________________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
_____________________________________________________________________________________
Name
of Authorized Signatory:
_____________________________________________________________________________________
Title
of Authorized Signatory:
Date:
___________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print)
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Phone Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature:______________________________ |
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Holder’s
Address:_______________________________ |
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Exhibit
4.9
Warrant
Agent Agreement
This
WARRANT AGENT AGREEMENT (this “Warrant Agreement”) dated as of [ ], 2024 is by and between Azitra, Inc., a Delaware
corporation (the “Company”), and VStock Transfer, LLC (the “Warrant Agent”).
WHEREAS, the Company
is selling in a public offering up to (i) [ ] units (the “Units”), with each Unit consisting of (x) one (1) share of
common stock, par value $0.0001 per share (“Common Stock”) and (y) two (2) Class A warrants to purchase two shares
of Common Stock at an exercise price of $[ ] (each, a “Class A Warrant” and collectively, the “Class A Warrants”
or the “Warrants”) or (ii) [ ] pre-funded units (the “Pre-funded Units”), with each Pre-funded Unit
consisting of (x) two (2) Class A Warrants and (z) one (1) pre-funded warrant to purchase one (1) share of Common Stock at an exercise
price of $0.0001 per share of Common Stock (each, a “Pre-funded Warrant” and collectively, the “Pre-funded
Warrants”);
WHEREAS,
the Company has filed, with the Securities and Exchange Commission, a registration statement on Form S-1 (Registration No. 333-[ ]) (as
the same may be amended from time to time, the “Registration Statement”), for the registration, under the Securities
Act of 1933, as amended, of the offer and sale of the Units, Pre-funded Units, Common Stock, Warrants, Pre-funded Warrants, and Common
Stock underlying Pre-funded Warrants and Warrants, and such Registration Statement was declared effective on [ ], 2024;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in accordance with
the terms set forth in this Warrant Agreement in connection with the issuance, registration, transfer, exchange and exercise of the Warrants
and the Pre-funded Warrants;
WHEREAS,
the Company desires to provide for the provisions of the Warrants and the Pre-funded Warrants, the terms upon which they shall be issued
and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of
the Warrants and the Pre-funded Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make the Warrants and the Pre-funded Warrants the valid, binding
and legal obligations of the Company, and to authorize the execution and delivery of this Warrant Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1.
Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company with respect to the
Warrants and the Pre-funded Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance
with the express terms and conditions set forth in this Warrant Agreement (and no implied terms or conditions).
2.
Warrants.
2.1.
Form of Warrants. The Class A Warrants and the Pre-funded Warrants shall each be registered securities and shall be evidenced
by a global warrant (each, a “Global Warrant”) in the forms of Exhibit A and Exhibit B
to this Warrant Agreement, which shall be deposited on behalf of the Company with a custodian for The Depository Trust Company (“DTC”)
and registered in the name of Cede & Co., a nominee of DTC. The terms of the Global Warrants are incorporated herein by reference.
If DTC subsequently ceases to make its book-entry settlement system available for the Class A Warrants or the Pre-funded Warrants, the
Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Class A Warrants
or the Pre-funded Warrants are not eligible for, or it is no longer necessary to have such instruments available in, book-entry form,
the Company may instruct the Warrant Agent to provide written instructions to DTC to deliver to the Warrant Agent for cancellation the
applicable Global Warrant, and the Company shall instruct the Warrant Agent to deliver to DTC separate certificates evidencing Class
A Warrants or Pre-funded Warrants (“Definitive Certificates” and, together with the Global Warrants, “Warrant
Certificates”) registered as requested through the DTC system.
2.2.
Issuance and Registration of Warrants.
2.2.1.
Warrant Register. The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original
issuance and the registration of transfer of the Warrants and the Pre-funded Warrants.
2.2.2.
Issuance of Warrants. Upon the initial issuance of the Warrants and the Pre-funded Warrants, the Warrant Agent shall issue the
Global Warrants and deliver the Warrants and the Pre-funded Warrants in the DTC book-entry settlement system in accordance with written
instructions delivered to the Warrant Agent by the Company. Ownership of security entitlements in the Warrants and the Pre-funded Warrants
shall be shown on, and the transfer of such ownership shall be effected through, records maintained (i) by DTC and (ii) by institutions
that have accounts with DTC (each, a “Participant”).
2.2.3.
Beneficial Owner; Holder. Prior to due presentment for registration of transfer of any Warrant or Pre-funded Warrant, the Company
and the Warrant Agent may deem and treat the person in whose name that Warrant or Pre-funded Warrant shall be registered on the Warrant
Register (the “Holder”) as the absolute owner of such security for purposes of any exercise thereof, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary; provided, that the rights of
beneficial owners in a Warrant or Pre-funded Warrant evidenced by a Global Warrant shall be exercised by the Holder or a Participant
through the DTC system. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Warrant Agent or any agent of the
Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by DTC governing
the exercise of the rights of a holder of a beneficial interest in any Warrant or Pre-funded Warrant.
2.2.4. Delivery
of Warrant Certificate. A Holder has the right to elect at any time or from time to time a Warrant Exchange (as defined below)
pursuant to a Warrant Certificate Request Notice (as defined below). Upon written notice by a Holder to the Warrant Agent for the
exchange of some or all of such Holder’s Global Warrants for a Warrant Certificate evidencing the same number of Class A
Warrants or Pre-funded Warrants, which request shall be in the form attached hereto as Exhibit C (a “Warrant
Certificate Request Notice”) and the deemed surrender upon delivery by the Holder of a number of Global Warrants for the
same number of Class A Warrants or Pre-funded Warrants evidenced by a Warrant Certificate, a “Warrant
Exchange”), the Warrant Agent shall promptly effect the Warrant Exchange and shall promptly issue and deliver to the
Holder a Warrant Certificate for such number of Class A Warrants or Pre-funded Warrants in the name set forth in
the Warrant Certificate Request Notice. Such Warrant Certificate shall be dated the date of issuance of the Warrant Certificate,
shall include the initial exercise date of the Class A Warrants or Pre-funded Warrants, shall be executed by an
authorized signatory of the Company and shall be reasonably acceptable in all respects to such Holder. In connection with a Warrant
Exchange, the Company agrees to deliver, or to direct the Warrant Agent to deliver, the Warrant Certificate to the Holder within
three (3) Business Days of the Warrant Certificate Request Notice pursuant to the delivery instructions in the Warrant Certificate
Request Notice. The Company covenants and agrees that, upon the date of delivery of the Warrant Certificate Request Notice, the
Holder shall be deemed to be the holder of the Warrant Certificate and, notwithstanding anything to the contrary set forth herein,
the Warrant Certificate shall be deemed for all purposes to contain all of the terms and conditions of the Warrants or Pre-funded
Warrants evidenced by such Warrant Certificate and the terms of this Agreement.
2.2.5.
Execution. The Warrant Certificates shall be executed on behalf of the Company by any authorized officer of the Company (an “Authorized
Officer”), which need not be the same authorized signatory for all of the Warrant Certificates, either manually or by facsimile
signature. The Warrant Certificates shall be countersigned by an authorized signatory of the Warrant Agent, which need not be the same
signatory for all of the Warrant Certificates, and no Warrant Certificate shall be valid for any purpose unless so countersigned. In
case any Authorized Officer of the Company that signed any of the Warrant Certificates ceases to be an Authorized Officer of the Company
before countersignature by the Warrant Agent and issuance and delivery by the Company, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force and effect as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Warrant Certificate, shall be an Authorized Officer of the Company authorized
to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such an Authorized
Officer.
2.2.6. Registration
of Transfer. At any time at or prior to the Termination Date (as defined below), a transfer of any Class A Warrants or
Pre-funded Warrants may be registered and any Warrant Certificate or Warrant Certificates may be split up, combined or exchanged for
another Warrant Certificate or Warrant Certificates evidencing the same number of Class A Warrants or Pre-funded Warrants as the
Warrant Certificate or Warrant Certificates surrendered. Any Holder desiring to register the transfer of Class A Warrants or
Pre-funded Warrants or to split up, combine or exchange any Warrant Certificate shall make such request in writing delivered to the
Warrant Agent, and shall surrender to the Warrant Agent the Warrant Certificate or Warrant Certificates evidencing the Class A
Warrants or the Pre-funded Warrants the transfer of which is to be registered or that is or are to be split up, combined or
exchanged and, in the case of registration of transfer, shall provide a signature guarantee. Thereupon, the Warrant Agent shall
countersign and deliver to the person entitled thereto a Warrant Certificate or Warrant Certificates, as the case may be, as so
requested; provided, however that Class A Warrants and Pre-funded Warrants may not be combined in the same Warrant
Certificate. The Company and the Warrant Agent may require payment, by the Holder requesting a registration of transfer of Class A
Warrants or Pre-funded Warrants or a split-up, combination or exchange of a Warrant Certificate (but, for purposes
of clarity, not upon the exercise of the Warrants and issuance of Warrant Shares to the Holder), of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with such registration of transfer, split-up, combination or exchange,
together with reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental thereto.
2.2.7.
Loss, Theft and Mutilation of Warrant Certificates. Upon receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity
or security in customary form and amount, and reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental
thereto, and upon surrender to the Warrant Agent and cancellation of the Warrant Certificate if mutilated, the Warrant Agent shall, on
behalf of the Company, countersign and deliver a new Warrant Certificate of like tenor to the Holder in lieu of the Warrant Certificate
so lost, stolen, destroyed or mutilated. The Warrant Agent may charge the Holder an administrative fee for processing the replacement
of lost Warrant Certificates. The Warrant Agent may receive compensation from the surety companies or surety agents for administrative
services provided to them.
2.2.8.
Proxies. The Holder of a Warrant or Pre-funded Warrant may grant proxies or otherwise authorize any person, including the Participants
and beneficial holders that may own interests through the Participants, to take any action that a Holder is entitled to take under this
Agreement or the Warrants or Pre-funded Warrants; provided, however, that at all times that Warrants or Pre-funded Warrants
are evidenced by a Global Warrant, exercise of those Warrants or Pre-funded Warrants shall be effected on their behalf by Participants
through DTC in accordance the procedures administered by DTC.
3.
Terms and Exercise of Warrants.
3.1.
Exercise Price. Each Warrant shall entitle the Holder, subject to the provisions of the applicable Warrant Certificate and of
this Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the exercise price stated
therein, subject to the subsequent adjustments provided in the Global Warrant. Each Pre-funded Warrant shall entitle the Holder, subject
to the provisions of the applicable Warrant Certificate and of this Warrant Agreement to purchase from the Company the number of shares
of Common Stock stated therein, at the price of $0.0001 per share of Common Stock, subject to the subsequent adjustments provided in
the Global Warrant. The term “Exercise Price” as used in this Warrant Agreement refers to the price per share at which
shares of Common Stock may be purchased at the time a Warrant or Pre-funded Warrant is exercised.
3.2.
Duration of Warrants. A Warrant may be exercised only during the period (“Exercise Period”) commencing on the
date of issuance and ending on the Termination Date. For purposes of this Warrant Agreement, the “Termination Date”
of the Class A Warrants shall have the meaning set forth in each Global Warrant evidencing the Class A Warrants. Each Warrant not exercised on or before the Termination Date shall become void, and all rights thereunder
and all rights in respect thereof under this Agreement shall cease at the close of business on the Termination Date. The Pre-funded Warrants
do not expire.
3.3.
Exercise of Warrants.
3.3.1.
Exercise. Subject to the provisions of each Global Warrant, a Holder (or a Participant or a designee of a Participant acting on
behalf of a Holder) may exercise Warrants or Pre-funded Warrants by delivering to the Warrant Agent, not later than 4:00 P.M., Eastern
Time, on any business day during the Exercise Period a notice of exercise of the Warrants or Pre-funded Warrants to be exercised (i)
in the form attached to the Global Warrant or (ii) via an electronic warrant exercise through the DTC system (each, an “Election
to Purchase”) and, unless the cashless exercise procedure is specified in the applicable Election to Purchase, delivery of
the aggregate Exercise Price of the Warrant Shares specified in the applicable Election to Purchase. All other requirements for the exercise
of a Warrant or Pre-funded Warrant shall be as set forth in the Warrant or Pre-funded Warrant, respectively. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender a Warrant Certificate to the Warrant Agent until the
Holder has purchased all of the Warrant Shares available thereunder and the applicable Warrant Certificate has been exercised in full,
in which case, the Holder shall surrender the Warrant Certificate to the Warrant Agent for cancellation within three (3) Trading Days
of the date on which the final Election to Purchase is delivered to the Warrant Agent. Partial exercises of a Warrant Certificate resulting
in purchases of a portion of the total number of Warrant Shares available thereunder shall have the effect of lowering the outstanding
number of Warrant Shares purchasable thereunder in an amount equal to the applicable number of Warrant Shares purchased.
3.3.2.
The Warrant Agent shall, by 5:00 P.M., Eastern Time, on the Trading Day of the Exercise Date (as defined below) of any Warrant or
Pre-funded Warrant, advise the Company, the transfer agent and registrar for the Company’s Common Stock, in respect of (i) the
number of Warrant Shares indicated on the Notice of Exercise as issuable upon such exercise with respect to such exercised Warrants,
(ii) the instructions of the Holder or Participant, as the case may be, provided to the Warrant Agent with respect to the delivery of
the Warrant Shares and the number of Warrants or Pre-Funded Warrants that remain outstanding after such exercise and (iii) such other
information as the Company or such transfer agent and registrar shall reasonably request. The Company shall issue the Warrant Shares
in compliance with the terms of the Warrant or Pre-funded Warrant, as applicable.
3.3.3.
Valid Issuance. All Warrant Shares issued by the Company upon the proper exercise of a Warrant or Pre-funded Warrant in conformity
with this Warrant Agreement shall be validly issued, fully paid and non-assessable.
3.3.4.
No Fractional Exercise. Notwithstanding any provision contained in this Warrant Agreement to the contrary, no fractional shares
or scrip representing fractional shares shall be issued upon the exercise of the Warrant or Pre-funded Warrant. As to any fraction of
a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a
cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to
the next whole share.
3.3.5.
No Transfer Taxes. The Company shall not be required to pay any stamp or other tax or governmental charge required to be paid
in connection with any transfer involved in the issue of the Warrant Shares upon the exercise of Warrants or Pre-funded Warrants; and
in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Shares until such
tax or other charge shall have been paid or it has been established to the Company’s satisfaction that no such tax or other charge
is due.
3.3.6.
Date of Issuance. The Company will treat an exercising Holder as a beneficial owner of the Warrant Shares as of the time of delivery
of a Notice of Exercise (as defined in the Warrant Certificate) to the Warrant Agent or the Company, and for purposes of Regulation SHO,
a holder whose interest in the Warrant or Pre-funded Warrant is a beneficial interest in certificate(s) representing the Warrant or Pre-funded
Warrant held in book-entry form through DTC shall be deemed to have exercised its interest in the Warrant or Pre-funded Warrant upon
instructing its broker that is a DTC participant to exercise its interest in the Warrant or Pre-funded Warrant (the date of any such
exercise, an “Exercise Date”), except that, if the Exercise Date is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder of such shares at the open of business on the next succeeding date
on which the stock transfer books are open.
4.
Adjustments. Upon every adjustment of the Exercise Price or the number of Warrant Shares issuable upon exercise of a Warrant or
Pre-funded Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Exercise Price resulting
from such adjustment and the increase or decrease, if any, in the number of Warrant Shares purchasable at such price upon the exercise
of a Warrant or Pre-funded Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation
is based. Upon the occurrence of any event specified in Section 3 of the Warrant or Pre-funded Warrant, then, in any such event, the
Company shall give written notice to the Warrant Agent. Failure to give such notice, or any defect therein, shall not affect the legality
or validity of such event. The Warrant Agent shall be entitled to rely conclusively on, and shall be fully protected in relying on, any
certificate, notice or instructions provided by the Company with respect to any adjustment of the Exercise Price or the number of shares
issuable upon exercise of a Warrant or Pre-funded Warrant, or any related matter, and the Warrant Agent shall not be liable for any action
taken, suffered or omitted to be taken by it in accordance with any such certificate, notice or instructions or pursuant to this Warrant
Agreement. The Warrant Agent shall not be deemed to have knowledge of any such adjustment unless and until it shall have received written
notice thereof from the Company.
5.
Restrictive Legends; Fractional Warrants. In the event that a Warrant Certificate surrendered for transfer bears a restrictive
legend, the Warrant Agent shall not register that transfer until the Warrant Agent has received an opinion of counsel for the Company
stating that such transfer may be made and indicating whether the Warrants or Pre-funded Warrants must also bear a restrictive legend
upon that transfer. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the
transfer of or delivery of a Warrant Certificate for a fraction of a Warrant or Pre-funded Warrant.
6.
Other Provisions Relating to Rights of Holders of Warrants.
6.1.
No Rights as Stockholder. Except as otherwise specifically provided herein, a Holder, solely in its capacity as a holder of Warrants
or Pre-funded Warrants, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for
any purpose, nor shall anything contained in this Warrant Agreement be construed to confer upon a Holder, solely in its capacity as the
registered holder of Warrants or Pre-funded Warrants, any of the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of share capital, consolidation,
merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights or rights to participate in new
issues of shares, or otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled to receive upon the
due exercise of Warrants or Pre-funded Warrants.
6.2.
Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants and Pre-funded Warrants issued
pursuant to this Warrant Agreement.
7.
Concerning the Warrant Agent and Other Matters.
7.1.
Any instructions given to the Warrant Agent orally, as permitted by any provision of this Warrant Agreement, shall be confirmed in writing
by the Company as soon as practicable. The Warrant Agent shall not be liable or responsible and shall be fully authorized and protected
for acting, or failing to act, in accordance with any oral instructions which do not conform with the written confirmation received in
accordance with this Section 7.1.
7.2.
(a) Whether or not any Warrants or Pre-funded Warrants are exercised, for the Warrant Agent’s services as agent for the Company
hereunder, the Company shall pay to the Warrant Agent such fees as may be separately agreed between the Company and Warrant Agent. (b)
All amounts owed by the Company to the Warrant Agent under this Warrant Agreement are due within 30 days of the invoice date. Delinquent
payments are subject to a late payment charge of one and one-half percent (1.5%) per month commencing 45 days from the invoice date.
The Company agrees to reimburse the Warrant Agent for any attorney’s fees and any other costs associated with collecting delinquent
payments. (c) No provision of this Warrant Agreement shall require Warrant Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties under this Warrant Agreement or in the exercise of its rights.
7.3.
As agent for the Company hereunder the Warrant Agent: (a) shall have no duties or obligations other than those specifically set forth
herein or as may subsequently be agreed to in writing by the Warrant Agent and the Company; (b) shall be regarded as making no representations
and having no responsibilities as to the validity, sufficiency, value, or genuineness of the Warrants, Pre-funded Warrants or any Warrant
Shares; (c) shall not be obligated to take any legal action hereunder; if, however, the Warrant Agent determines to take any legal action
hereunder, and where the taking of such action might, in its judgment, subject or expose it to any expense or liability it shall not
be required to act unless it has been furnished with an indemnity reasonably satisfactory to it; (d) may rely on and shall be fully authorized
and protected in acting or failing to act upon any certificate, instrument, opinion, notice, letter or other document or security delivered
to the Warrant Agent and believed by it to be genuine and to have been signed by the proper party or parties; (e) shall not be liable
or responsible for any recital or statement contained in the Registration Statement or any other documents relating thereto; (f) shall
not be liable or responsible for any failure on the part of the Company to comply with any of its covenants and obligations relating
to the Warrants and Pre-funded Warrants, including without limitation obligations under applicable securities laws; (g) may rely on and
shall be fully authorized and protected in acting or failing to act upon the written, telephonic or oral instructions with respect to
any matter relating to its duties as Warrant Agent covered by this Warrant Agreement (or supplementing or qualifying any such actions)
of officers of the Company, and is hereby authorized and directed to accept instructions with respect to the performance of its duties
hereunder from the Company or counsel to the Company, and may apply to the Company, for advice or instructions in connection with the
Warrant Agent’s duties hereunder, and the Warrant Agent shall not be liable for any delay in acting while waiting for those instructions;
any applications by the Warrant Agent for written instructions from the Company may, at the option of the Warrant Agent, set forth in
writing any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on or after which such
action shall be taken or such omission shall be effective; the Warrant Agent shall not be liable for any action taken by, or omission
of, the Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which
date shall not be less than five business days after the date such application is sent to the Company, unless the Company shall have
consented in writing to any earlier date) unless prior to taking any such action, the Warrant Agent shall have received written instructions
in response to such application specifying the action to be taken or omitted; (h) may consult with counsel satisfactory to the Warrant
Agent, including its in-house counsel; (i) may perform any of its duties hereunder either directly or by or through nominees, correspondents,
designees, or subagents, and it shall not be liable or responsible for any misconduct or negligence on the part of any nominee, correspondent,
designee, or subagent appointed with reasonable care by it in connection with this Warrant Agreement; (j) is not authorized, and shall
have no obligation, to pay any brokers, dealers, or soliciting fees to any person; and (k) shall not be required hereunder to comply
with the laws or regulations of any country other than the United States of America or any political subdivision thereof.
7.4.
(a) In the absence of gross negligence or willful or illegal misconduct on its part, the Warrant Agent shall not be liable for any action
taken, suffered, or omitted by it or for any error of judgment made by it in the performance of its duties under this Warrant Agreement.
Anything in this Warrant Agreement to the contrary notwithstanding, in no event shall Warrant Agent be liable for special, indirect,
incidental, consequential or punitive losses or damages of any kind whatsoever (including but not limited to lost profits, liquidated
damages or buy-in claims), even if the Warrant Agent has been advised of the possibility of such losses or damages and regardless of
the form of action. Any liability of the Warrant Agent will be limited in the aggregate to the amount of fees paid by the Company hereunder.
The Warrant Agent shall not be liable for any failures, delays or losses, arising directly or indirectly out of conditions beyond its
reasonable control including, but not limited to, acts of government, exchange or market ruling, suspension of trading, work stoppages
or labor disputes, fires, civil disobedience, riots, rebellions, storms, electrical or mechanical failure, computer hardware or software
failure, communications facilities failures including telephone failure, war, terrorism, insurrection, earthquakes, floods, acts of God
or similar occurrences. (b) In the event any question or dispute arises with respect to the proper interpretation of the Warrants or
the Warrant Agent’s duties under this Warrant Agreement or the rights of the Company or of any Holder, the Warrant Agent shall
not be required to act and shall not be held liable or responsible for its refusal to act until the question or dispute has been judicially
settled (and, if appropriate, it may file a suit in interpleader or for a declaratory judgment for such purpose) by final judgment rendered
by a court of competent jurisdiction, binding on all persons interested in the matter which is no longer subject to review or appeal,
or settled by a written document in form and substance satisfactory to Warrant Agent and executed by the Company and each such Holder.
In addition, the Warrant Agent may require for such purpose, but shall not be obligated to require, the execution of such written settlement
by all the Holders and all other persons that may have an interest in the settlement.
7.5.
The Company covenants to indemnify the Warrant Agent and hold it harmless from and against any loss, liability, claim or expense (“Loss”)
arising out of or in connection with the Warrant Agent’s duties under this Warrant Agreement, including the costs and expenses
of defending itself against any Loss, unless such Loss shall have been determined by a court of competent jurisdiction to be a result
of the Warrant Agent’s gross negligence or willful or illegal misconduct.
7.6.
Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days after the later of the Termination Date (as defined
in the Warrants and Pre-funded Warrants) and the date on which no Warrants remain outstanding (the “Termination Date”).
On the business day following the Termination Date, the Warrant Agent shall deliver to the Company any entitlements, if any, held by
the Warrant Agent under this Warrant Agreement. The Agent’s right to be reimbursed for fees, charges and out-of-pocket expenses
as provided in this Section 8 shall survive the termination of this Warrant Agreement.
7.7.
If any provision of this Warrant Agreement shall be held illegal, invalid, or unenforceable by any court, this Warrant Agreement shall
be construed and enforced as if such provision had not been contained herein and shall be deemed an agreement among the parties to it
to the full extent permitted by applicable law.
7.8.
The Company represents and warrants that: (a) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(b) the offer and sale of the Warrants and Pre-funded Warrants and the execution, delivery and performance of all transactions contemplated
thereby (including this Warrant Agreement) have been duly authorized by all necessary corporate action and will not result in a breach
of or constitute a default under the articles of association, bylaws or any similar document of the Company or any indenture, agreement
or instrument to which it is a party or is bound; (c) this Warrant Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid, binding and enforceable obligation of the Company; (d) the Warrants and Pre-funded Warrants will comply
in all material respects with all applicable requirements of law; and (e) to the best of its knowledge, there is no litigation pending
or threatened as of the date hereof in connection with the offering of the Warrants or Pre-funded Warrants.
7.9.
In the event of inconsistency between this Warrant Agreement and the terms set forth in the Warrant Certificate with respect to a Warrant
or Pre-funded Warrant, as it may from time to time be amended, the terms of the Warrant Certificate shall control.
7.10.
Set forth in Exhibit D hereto is a list of the names and specimen signatures of the persons authorized to act for the Company
under this Warrant Agreement (the “Authorized Representatives”). The Company shall, from time to time, certify to
the Warrant Agent the names and signatures of any other persons authorized to act for the Company under this Warrant Agreement.
7.11.
Except as expressly set forth elsewhere in this Warrant Agreement, all notices, instructions and communications under this Agreement
shall be in writing, shall be effective upon receipt and shall be addressed, if to the Company, to its address set forth beneath its
signature to this Agreement, or, if to the Warrant Agent, to VStock Transfer, LLC, 18 Lafayette Place, Woodmere, NY 11598, or to such
other address of which a party hereto has notified the other party.
7.12.
(a) This Warrant Agreement shall be governed by and construed in accordance with the laws of the State of New York. All actions and proceedings
relating to or arising from, directly or indirectly, this Warrant Agreement may be litigated in courts located within the Borough of
Manhattan in the City and State of New York. The Company hereby submits to the personal jurisdiction of such courts and consents that
any service of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address
last specified for notices hereunder. (b) This Warrant Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the parties hereto. This Warrant Agreement may not be assigned, or otherwise transferred, in whole or in part, by either party
without the prior written consent of the other party, which the other party will not unreasonably withhold, condition or delay; except
that (i) consent is not required for an assignment or delegation of duties by Warrant Agent to any affiliate of Warrant Agent and (ii)
any reorganization, merger, consolidation, sale of assets or other form of business combination by the Warrant Agent or the Company shall
not be deemed to constitute an assignment of this Warrant Agreement. (c) No provision of this Warrant Agreement may be amended, modified
or waived, except in a written document signed by both parties.
7.13.
Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or
the Warrant Agent in respect of the issuance or delivery of Warrant Shares upon the exercise of Warrants and Pre-funded Warrants, but
the Company may require the Holders to pay any transfer taxes in respect of the Warrants or such shares. The Warrant Agent may refrain
from registering any transfer of Warrants or Pre-funded Warrants or any delivery of any Warrant Shares unless or until the persons requesting
the registration or issuance shall have paid to the Warrant Agent for the account of the Company the amount of such tax or charge, if
any, or shall have established to the reasonable satisfaction of the Company and the Warrant Agent that such tax or charge, if any, has
been paid.
7.14.
Resignation of Warrant Agent.
7.14.1.
Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and
be discharged from all further duties and liabilities hereunder after giving thirty (30) days’ notice in writing to the Company,
or such shorter period of time agreed to by the Company. The Company may terminate the services of the Warrant Agent, or any successor
Warrant Agent, after giving thirty (30) days’ notice in writing to the Warrant Agent or successor Warrant Agent, or such shorter
period of time as agreed. If the office of the Warrant Agent becomes vacant by resignation, termination or incapacity to act or otherwise,
the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent,
then the Warrant Agent or any Holder may apply to any court of competent jurisdiction for the appointment of a successor Warrant Agent
at the Company’s cost. Pending appointment of a successor to such Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor Warrant Agent (but not including the initial Warrant Agent),
whether appointed by the Company or by such court, shall be a person organized and existing under the laws of any state of the United
States of America, in good standing, and authorized under such laws to exercise corporate trust powers and subject to supervision or
examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent
hereunder, without any further act or deed, and except for executing and delivering documents as provided in the sentence that follows,
the predecessor Warrant Agent shall have no further duties, obligations, responsibilities or liabilities hereunder, but shall be entitled
to all rights that survive the termination of this Warrant Agreement and the resignation or removal of the Warrant Agent, including but
not limited to its right to indemnity hereunder. If for any reason it becomes necessary or appropriate or at the request of the Company,
the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor
Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant
Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
7.14.2.
Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof
to the predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment.
7.14.3.
Merger or Consolidation of Warrant Agent. Any person into which the Warrant Agent may be merged or converted or with which it
may be consolidated or any person resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party
or any person succeeding to the shareowner services business of the Warrant Agent or any successor Warrant Agent shall be the successor
Warrant Agent under this Warrant Agreement, without any further act or deed. For purposes of this Warrant Agreement, “person”
shall mean any individual, firm, corporation, partnership, limited liability company, joint venture, association, trust or other entity,
and shall include any successor (by merger or otherwise) thereof or thereto.
8.
Miscellaneous Provisions.
8.1.
Persons Having Rights under this Warrant Agreement. Nothing in this Warrant Agreement expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than
the parties hereto any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof.
8.2.
Examination of the Warrant Agreement. A copy of this Warrant Agreement shall be available at all reasonable times at the office
of the Warrant Agent designated for such purpose for inspection by any Holder. Prior to such inspection, the Warrant Agent may require
any such holder to provide reasonable evidence of its interest in the Warrants or the Pre-funded Warrants.
8.3.
Counterparts. This Warrant Agreement may be executed in any number of original, facsimile or electronic counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one
and the same instrument.
8.4.
Effect of Headings. The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall
not affect the interpretation thereof.
9.
Certain Definitions. As used herein, the following terms shall have the following meanings:
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(a) |
“Trading
Day” means any day on which the Common Stock is traded on the Trading Market, or, if the Trading Market is not the principal
trading market for the Common Stock, then on the principal securities exchange or securities market in the United States on which
the Common Stock are then traded, provided that “Trading Day” shall not include any day on which the Common Stock
is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock are suspended from trading
during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing
time of trading on such exchange or market, then during the hour ending at 4:00 P.M., Eastern Time). |
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(b) |
“Trading
Market” means NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the
New York Stock Exchange. |
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Warrant Agent Agreement has been duly executed by the parties hereto as of the day and year first above written
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AZITRA,
INC. |
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By: |
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Name: |
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Title: |
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Address: |
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VSTOCK
TRANSFER, LLC |
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By: |
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Name: |
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Title: |
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EXHIBIT
A
GLOBAL
CLASS A WARRANT
[See
attached.]
EXHIBIT
B
GLOBAL
PRE-FUNDED WARRANT
[See
attached.]
EXHIBIT
C
WARRANT
CERTIFICATE REQUEST NOTICE
To:
___________ as Warrant Agent for __________ (the “Company”)
The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Global Warrants issued by the Company
hereby elects to receive a Warrant Certificate evidencing the Warrants held by the Holder as specified below:
1. |
Name
of Holder of Warrants in form of Global Warrants: _____________________________ |
|
|
2. |
Name
of Holder in Warrant Certificate (if different from name of Holder of Warrants in form of Global Warrants): ________________________________ |
|
|
3. |
Number
of Warrants in name of Holder in form of Global Warrants: ___________________ |
|
|
4. |
Number
of Warrants for which Warrant Certificate shall be issued: __________________ |
|
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5. |
Series
of Warrants to which this Certificate Request
Notice applies (Class A or Pre-funded): _________________ |
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6. |
Number
of Warrants in name of Holder in form of Global Warrants after issuance of Warrant Certificate, if any: ___________ |
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7. |
Warrant
Certificate shall be delivered to the following address: |
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with this Warrant Exchange and the issuance of the Warrant Certificate,
the Holder is deemed to have surrendered the number of Warrants in form of Global Warrants in the name of the Holder equal to the number
of Warrants evidenced by the Warrant Certificate.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________
Name
of Authorized Signatory: ________________________________________________
Title
of Authorized Signatory: _________________________________________________
Date:
_______________________________________________________________
EXHIBIT
D
AUTHORIZED
REPRESENTATIVES
Exhibit
5.1
GREENBERG
TRAURIG, LLP
18565
Jamboree Road, Suite 500
Irvine,
California 92612
July
15, 2024
Azitra,
Inc.
21
Business Park Drive
Branford,
CT 06405
Re:
Registration Statement on Form S-1
Ladies
and Gentlemen:
We
have acted as counsel to Azitra, Inc., a Delaware corporation (the “Company”), in connection with the Registration
Statement on Form S-1 (the “Registration Statement”) filed this day with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, for the registration of (i) up to 3,115,265 shares (the “Common Shares”)
of the Company’s common stock (“Common Stock”); (ii) Prefunded Warrants to purchase up to an aggregate of 3,115,265
shares of Common Stock (the “Prefunded Warrants”), (iii) Class A Warrants to purchase up to an aggregate
of 6,230,530 shares of Common Stock (the “Class A Warrants”), and (iv) placement agent
warrants to purchase up to 124,610 shares of Common Stock (the “Placement Agent Warrants” and together with
the Prefunded Warrants and the Class A Warrants, the “Warrants”). The Common Shares and the Warrants
are to be sold pursuant to a Placement Agency Agreement between the Company and Maxim Group, LLC.
You
have requested our opinion as to the matters set forth below in connection with the Registration Statement. For purposes of rendering
this opinion, we have examined the Registration Statement, forms of the Second Amended and Restated Certificate of Incorporation, as
further amended, and Second Amended and Restated Bylaws of the Company currently in effect at the close of the offering, the Warrants
and the corporate action of the Company that provides for the issuance of the Common Shares, the execution and issuance of the Warrants
and the issuance of the shares (“Underlying Shares”) of Common Stock underlying the Warrants, and we have made such
other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and, as to certain
matters of fact that are material to our opinion, we have also relied on a certificate of an officer of the Company. We have not independently
verified the matters set forth in such certificates.
We
express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware,
the laws of the State of New York and the federal laws of the United States of America.
Based
upon and subject to the foregoing, it is our opinion that the Common Shares are duly authorized for issuance by the Company and, when
issued and paid for as described in the Registration Statement, will be validly issued, fully paid and non-assessable.
Based
upon and subject to the foregoing, it is our opinion that the Warrants have been duly authorized for issuance by the Company and, when
issued in conformity with and pursuant to the Registration Statement, will be validly issued, fully paid and non-assessable.
Based
upon and subject to the foregoing, it is our opinion that the Underlying Shares have been duly authorized for issuance by the Company
and, upon exercise and payment of the exercise price therefor in accordance with the terms of the Warrants, will be validly issued, fully
paid and non-assessable.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption
“Legal Matters” in the prospectus made part of the Registration Statement.
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Very truly yours, |
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|
|
/s/ GREENBERG TRAURIG, LLP |
Exhibit
10.7
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of ____ __, 2024, between Azitra, Inc., a Delaware corporation
(the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns,
a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act (as defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Class
A Common Warrants” means, collectively, the Class A Common Stock purchase warrants delivered to the Purchasers at the Closing
in accordance with Section 2.2(a) hereof, which Common Warrants shall be exercisable in accordance with the terms therein and will expire
five years after the initial exercise date, in the form of Exhibit A attached hereto.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading
Day (or second (2nd) Trading Day if this Agreement is executed after 4:00 p.m. (New York City Time) but prior to 11:59 p.m.
(New York City Time)) following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common
Unit” means each Common Unit consisting of (a) one Share and (b) two Class A Warrants.
“Common
Unit Purchase Price” equals $[ ] per each Common Unit, subject to adjustments for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of Common Stock that occur after the date of this agreement.
“Common
Unit Subscription Amount” means, as to each purchaser, the aggregate amount to be paid for the Common Units hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Common Unit Subscription Amount”,
in immediately available funds.
“Company
Counsel” means Greenberg Traurig, LLP, with offices located at 18565 Jamboree Road, Suite 500, Irvine, CA 92612.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority
of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder, warrants to the Placement Agent as compensation in
connection with the offering of the Securities and any securities upon exercise of warrants to the Placement Agent and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations)
or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 4.11(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities and (d) up to $[ ] of Common Units issued to other purchasers pursuant to the Prospectus concurrently
with the Closing at the Common Unit Purchase Price, less the aggregate Subscription Amount pursuant to this Agreement.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“IP
Counsel” means McCarter & English, LLP, with offices located at [ ].
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement
Agent” means Maxim Group LLC.
“Pre-Funded
Units” means each Pre-Funded Unit consisting of (a) one Pre-Funded Warrant to purchase one Pre-Funded Warrant Share and
(b) two Class A Warrants.
“Pre-Funded
Unit Purchase Price” equals $[ ] per each Pre-Funded Unit, subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Pre-Funded
Unit Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Pre-Funded Units purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Pre-Funded Unit
Subscription Amount,” in immediately available funds.
“Pre-Funded
Warrant” means, collectively, the Pre-Funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the
form of Exhibit C attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Preliminary
Prospectus” means any preliminary prospectus included in the Registration Statement, as originally filed or as part of any
amendment thereto, or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities
Act.
“Pricing
Prospectus” means (i) the Preliminary Prospectus relating to the Securities that was included in the Registration Statement
immediately prior to [_____] (New York City time) on the date hereof and (ii) any free writing prospectus (as defined in the Securities
Act) identified on Schedule A hereto, taken together.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission File No. 333-[_______] which registers the sale of the
Units, Shares, the Warrants and the Warrant Shares to the Purchasers, and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Securities,
which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated
by the Commission pursuant to the Securities Act.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Units, Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the Common Unit Subscription Amount and/or Pre-Funded Unit Subscription Amount as applicable,
in accordance with Section 2.1 herein.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC Reports, and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Warrants, the Warrant Agent Agreement, all exhibits and schedules thereto and hereto
and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Vstock Transfer, LLC, the current transfer agent of the Company, with offices located at 18 Lafayette Pl, Woodmere,
NY 11598, and any successor transfer agent of the Company.
“Units”
means, collectively the Common Units and Pre-Funded Units.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.11(b).
“Warrants”
means, collectively, the Class A Common Warrants and the Pre-Funded Warrants.
“Warrant
Agent Agreement” means the warrant agent agreement dated on or about the Closing Date, between the Company and the Transfer
Agent.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,
agree to purchase, up to an aggregate of $[ ] of Common Units determined pursuant to Section 2.2(a); provided, however,
that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates,
and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would beneficially own in
excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Common Units such Purchaser
may elect to purchase Pre-Funded Units at the Pre-Funded Unit Purchase Price in lieu of Common Units. The “Beneficial Ownership
Limitation” shall be 4.99% (or, at the election of the Purchaser at Closing, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of the Securities on the Closing Date. Unless otherwise directed by the Placement
Agent, each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made
available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser
its respective Securities as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items
set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and
2.3, the Closing shall occur remotely by electronic transfer of the Closing documentation. Each Purchaser acknowledges that, concurrently
with the Closing and pursuant to the Prospectus, the Company may sell up to $[________] of additional Units to purchasers not party to
this Agreement, less the aggregate Subscription Amount to this Agreement, and will issue to such purchasers such Securities in the same
form as the same Common Unit Purchase Price or Pre-Funded Unit Purchase Price. Unless otherwise directed by the Placement Agent, settlement
of the Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company
shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s)
at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver
such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer
to the Company). Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement
by the Company and an applicable Purchaser, through, and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), such Purchaser sells to any Person all, or any portion, of the Shares to be issued hereunder to such Purchaser at
the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without any
additional required actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, such Pre-Settlement
Shares at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement Shares to such Purchaser prior
to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder; and provided further that the Company hereby
acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser as to whether or not during
the Pre-Settlement Period such Purchaser shall sell any shares of Common Stock to any Person and that any such decision to sell any shares
of Common Stock by such Purchaser shall solely be made at the time such Purchaser elects to effect any such sale, if any. Notwithstanding
anything to the contrary herein and a Purchaser’s Subscription Amount set forth on the signature pages attached hereto, the number
of Shares purchased by a Purchaser (and its Affiliates) hereunder shall not, when aggregated with all other shares of Common Stock owned
by such Purchaser (and its Affiliates) at such time, result in such Purchaser beneficially owning (as determined in accordance with Section
13(d) of the Exchange Act) in excess of 9.9% of the then issued and outstanding Common Stock outstanding at the Closing (the “Beneficial
Ownership Maximum”), and such Purchaser’s Subscription Amount, to the extent it would otherwise exceed the Beneficial
Ownership Maximum immediately prior to the Closing, shall be conditioned upon the issuance of Shares at the Closing to the other Purchasers
signatory hereto. To the extent that a Purchaser’s beneficial ownership of the Shares would otherwise be deemed to exceed the Beneficial
Ownership Maximum, such Purchaser’s Subscription Amount shall automatically be reduced as necessary in order to comply with this
paragraph. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Pre-Funded Warrants) delivered
on or prior to 12:00 p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution of
this Agreement, the Company agrees to deliver the Pre-Funded Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time)
on the Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Pre-Funded Warrants) for purposes
hereunder.
2.2
Deliveries.
(a)
On or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the
following:
(i)
On the date hereof, this Agreement duly executed by the Company;
(ii)
a legal opinion (including negative assurance letter) of Company Counsel, substantially in form and substance reasonably satisfactory
to the Placement Agent;
(iii)
a legal opinion of IP Counsel, substantially in the form and substance reasonably satisfactory to the Placement Agent;
(iv)
subject to Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead
and executed by the Chief Executive Officer or Chief Financial Officer;
(v)
subject to Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an
expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to
such Purchaser’s Subscription Amount divided by the Common Unit Purchase Price, registered in the name of such Purchaser;
(vi)
two Class A Warrants registered in the name of such Purchaser, each such Class A Warrant to purchase up to a number of
shares of Common Stock equal to 100% of such Purchaser’s Shares (or Pre-Funded Warrant Shares), with an exercise price equal to
$[_____], subject to adjustment therein;
(vii)
for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded
Warrant divided by the Pre-Funded Unit Purchase Price, with an exercise price equal to $0.0001, subject to adjustment therein;
(viii)
the duly executed Warrant Agent Agreement; and
(ix)
the Pricing Prospectus and Prospectus (which may
be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i)
on the date hereof, this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the
Company or its designee.
2.3
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a
specific date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties
are qualified by materiality, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless
as of a specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date;
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly
or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in
any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of
the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no
further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith
other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party
has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium 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 and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws or other organizational or charter documents, or (ii) except as disclosed in the Preliminary
Prospectus, conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default)
under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others
any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company
or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus, (iii) notices and/or application(s)
to each applicable Trading Market for the issuances and sale of the Securities and listing of the Shares and Warrant Shares for trading
thereon in the time and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws
(collectively, the “Required Approvals”).
(f)
Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The Warrant Shares are duly authorized and, when issued in accordance with the terms of the Warrants, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and upon exercise of the Warrants. The
Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual
rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the Securities has
been duly and validly taken. The Securities conform in all material respects to all statements with respect thereto contained in the
Registration Statement and the Prospectus. The Company has prepared and filed the Registration Statement in conformity with the requirements
of the Securities Act, which became effective on [____ __], 2024 (the “Effective Date”), including the Prospectus,
and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of the Preliminary Prospectus or the Prospectus has been issued by the Commission and no proceedings for that purpose
have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and
regulations of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration Statement
and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any
amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Pricing Prospectus, the Prospectus and any amendments or supplements thereto, at
the time the Pricing Prospectus, the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed
and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(g)
Capitalization. The capitalization of the Company as of the end of the period covered by its most recently filed periodic report
under the Exchange Act was set forth in such periodic report. The Company has not issued any securities since its most recently filed
periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock
option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under
the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as set
forth in the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person
any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock
or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company
or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers). There are no outstanding
securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset
price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such
Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase securities. The authorized shares of the Company
conform in all material respects to all statements relating thereto contained in the Registration Statement, the Pricing Prospectus and
the Prospectus. The offers and sales of the Company’s securities were at all relevant times either registered under the Securities
Act and the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers, exempt
from such registration requirements. No further approval or authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any
of the Company’s stockholders.
(h)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Pricing Prospectus
and the Prospectus, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received
a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis during
the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position
of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and
documents described in the Registration Statement, the Pricing Prospectus, the Prospectus, and the SEC Reports conform in all material
respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act
and the rules and regulations thereunder to be described in the Registration Statement, the Pricing Prospectus, the Prospectus or the
SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each
agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
or affected and (i) that is referred to in the Registration Statement, the Pricing Prospectus, the Prospectus or the SEC Reports, or
(ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and
effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under
the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. None
of such agreements or instruments has been assigned by the Company, and, except is disclosed in the Preliminary Prospectus, neither the Company nor, to the Company’s actual knowledge
any other party is in default thereunder and, to the Company’s actual knowledge, no event has occurred that, with the lapse of
time or the giving of notice, or both, would constitute a default thereunder. To the Company’s actual knowledge, performance by
the Company of the material provisions of such agreements or instruments will not result in a violation of any existing Applicable Law
or order or decree of any Governmental Authority or court, domestic or foreign, having jurisdiction over the Company or any of its assets
or businesses, including, without limitation, those relating to environmental laws and regulations.
(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as set forth in the SEC Reports, (i) there has been no event, occurrence or development that has had or
that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth in the SEC Reports, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made
that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made. Unless otherwise disclosed
in an SEC Report filed prior to the date hereof, the Company has not: (i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its
capital stock.
(j)
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an
“Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has
not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the
Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters that would reasonably be expected to have a Material Adverse Effect. The Company and its
Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) except as disclosed in the Preliminary Prospectus, is in default under or in violation
of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the
Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or
that it is in violation of, any credit facility, indenture, loan or credit agreement or any other agreement or instrument to which
it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is
in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in
violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material
Adverse Effect.
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including 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 (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where in each of clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date
of this Agreement except where such expiration, termination or abandonment would not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within
the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.
(r)
Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and 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, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the 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 to maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and
designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it
files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of
the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act
(such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as
such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely
to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t)
Certain Fees. Except for fees payable by the Company to the Placement Agent or as set forth in the Pricing Prospectus or Prospectus,
no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the
Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf
of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by
the Transaction Documents.
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. Except as disclosed in the Preliminary Prospectus, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities
Act of any securities of the Company or any Subsidiary.
(w)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which
the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market, which has not been resolved to the Trading Market’s satisfaction. The Company is, and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer
through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to
the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the
laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company
fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of
the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(y)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or
counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise
disclosed in the Pricing Prospectus or the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company
to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby 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. The press releases disseminated
by the Company during the twelve months preceding the date of this Agreement taken as a whole do 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 and when made, not misleading. The Company acknowledges and agrees that
no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.2 hereof.
(z)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or 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 cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(aa)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt
by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its
business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. The SEC Reports sets forth as of the date thereof all outstanding secured
and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes
of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases
required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, subject
to permitted extensions (ii) has 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 and (iii) has set aside on its books provision reasonably adequate for
the payment of all material 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 the Company
or of any Subsidiary know of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements
filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for
all periods to and including the dates of such consolidated financial statements. The term “taxes” mean all federal, state,
local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs,
duties or other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions
to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements,
and other documents required to be filed in respect to taxes.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd)
Accountants. The Company’s accounting firm is Grassi & Co., CPAs, P.C. To the knowledge and belief of the Company, such
accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect
to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2024.
(ee)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(ff)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding
(except for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been
asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the
Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging 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 deliverables with respect to Securities are being determined, and (z) such hedging
activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time
that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute
a breach of any of the Transaction Documents.
(gg)
Regulation M Compliance. The Company 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 in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement
of the Securities.
(hh)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“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 the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company 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 Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its 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 the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company 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 the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the Company.
(ii)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any
Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii)
the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(jj)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the last three (3) years
were, in compliance with all applicable state, federal and foreign data privacy and security laws and regulations, including, without
limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy
Laws”); (ii) the Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to
ensure compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling and analysis of Personal Data (as defined below) (the “Policies”); (iii) the Company provides accurate notice
of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and
(iv) applicable Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating to its
subject matter, and do not contain any material omissions of the Company’s then-current privacy practices, as required by Privacy
Laws. “Personal Data” means (i) a natural person’s name, street address, telephone number, email address, photograph,
social security number, bank information, or customer or account number; (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR;
and (iv) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any identifiable data related to an identified person’s health or sexual orientation. (i) None of such disclosures
made or contained in any of the Policies have been inaccurate, misleading, or deceptive in violation of any Privacy Laws and (ii) the
execution, delivery and performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. Neither
the Company nor the Subsidiaries (i) to the knowledge of the Company, has received written notice of any actual or potential liability
of the Company or the Subsidiaries under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy
Laws; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant
to any regulatory request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement by or with any
court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
(kk)
Stock Option Plans. Each stock option granted by the Company under the Company’s incentive equity plan was granted (i) in
accordance with the terms of the Company’s incentive equity plan and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s incentive equity plan has been backdated. The Company has not knowingly granted, and there is no and has been
no Company 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 the Company or its Subsidiaries or their financial results
or prospects.
(ll)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(mm)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
(nn)
Bank Holding Company Act. Neither the Company nor any of its 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 the Company nor any of its Subsidiaries or 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 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 the Company nor any of its 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.
(oo)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to
which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof,
will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except:
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium 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 and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business.
(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each
date on which it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act.
(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Preliminary Prospectus, Transaction
Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and
conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information
about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to
enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the
investment. Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has
provided such Purchaser 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 the Company or the quality of the
Securities and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which such
Purchaser agrees need not be provided to it. In connection with the issuance of the Securities to such Purchaser, neither the
Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(f)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has
not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any
purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser
first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material
pricing terms of the transactions contemplated hereunder and ending when the transaction is first publicly announced pursuant to the
initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s
assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that
made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement
or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors,
employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing
shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the
issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise and the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant
to Rule 144 under the Securities Act, the Warrant Shares issued pursuant
to any such exercise shall be issued free of all legends. If at any time following the date hereof the Registration Statement (or
any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise
available for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing
that such registration statement is not then effective and thereafter shall promptly notify such holders when the registration
statement is effective again and available for the sale or resale of the Warrant Shares (it being understood and agreed that the
foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance
with applicable federal and state securities laws). The Company shall use best efforts to keep a registration statement (including
the Registration Statement) registering the issuance or resale of the Warrant Shares effective during the term of the
Warrants.
4.2
Furnishing of Information. Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired,
the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the
reporting requirements of the Exchange Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the
rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material
terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the Exchange Act; provided that such Form 8-K will not be required if the Transaction Documents have been filed as exhibits to the
Registration Statement. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including,
without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition,
effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees, Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers
or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and
each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby,
and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the
prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with
respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission
and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such
information and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall
not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries or any of
their respective officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, not to trade
on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent
that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the
Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant
to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant
in effecting transactions in securities of the Company.
4.7
Use of Proceeds. Except as set forth in the Pricing Prospectus and the Prospectus, the Company shall use the net proceeds from
the sale of the Securities hereunder for general corporate and working capital purposes and shall not use such proceeds: (a) for the
satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s
business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any
outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements,
court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result
of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and, the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel a
material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be
liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior
written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s breach of any of the representations, in the other Transaction Documents.
The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause
of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant
to law.
4.9
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company
to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10
Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock
on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all
of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such
Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will
then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of
the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take
all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects
with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees
to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer.
4.11
Subsequent Equity Sales.
(a)
From the date hereof until three (3) months after the Closing Date, neither the Company nor any Subsidiary shall (i) issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents
or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus Supplement or filing a
registration statement on Form S-8 in connection with any employee benefit plan.
(b)
From the date hereof until six (6) months after the Closing Date, the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include
the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price
that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial
issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly
or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the
Company may issue securities at a future determined price regardless of whether shares pursuant to such agreement have actually been
issued and regardless of whether such agreement is subsequently canceled; provided, however, that, three (3) months after
the Closing Date, the entry into and/or issuance of shares of Common Stock in an “at the market” offering with the Placement
Agent as sales agent shall not be deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against
the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(c)
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance.
4.12
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.
4.13
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing as of the time that such Purchaser first received a
term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms of
the transactions contemplated hereunder and ending at such time that the transactions contemplated by this Agreement are first publicly
announced pursuant to the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant
to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms
of this transaction and the information included in the Transaction Documents (other than as disclosed to its legal and other representatives).
Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges
and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions
in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant
to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions
in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated
by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser
shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any of its Subsidiaries,
or any of their respective officers, directors, employees, Affiliates, or agent, including, without limitation, the Placement Agent,
after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14
Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to
exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms,
conditions and time periods set forth in the Transaction Documents.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Pricing Prospectus and the
Prospectus, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is
delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares and Pre-Funded
Warrant Shares based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in
the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification
or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted
Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the
rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior
written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon
each Purchaser and holder of Securities and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and
permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations, warranties, and
covenants of the Company in this Agreement and the representations, warranties, and covenants of the Purchasers in this Agreement. This
Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section
5.8.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of
any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient
venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction
Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall
be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file (including any electronic signature covered by the U.S. federal ESIGN Act of 200, Uniform Electronic
Transaction Act, the Electronic Signatures and Records Act, or other applicable law, e.g. www.docusign.com),, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such “.pdf” signature page were an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions
of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and
the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance
of a replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages,
each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that
a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through EGS. EGS does not represent any of the Purchasers and only represents the Placement Agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.19
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise
the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.
5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Azitra,
Inc. |
|
Address for Notice: |
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
E-Mail: |
|
Title: |
|
|
|
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With a copy to (which shall not constitute notice): |
|
|
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
PURCHASER
SIGNATURE PAGES TO Azitra, Inc. SECURITIES PURCHASE AGREEMENT
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
Name
of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: _________________________________
Name
of Authorized Signatory: _______________________________________________
Title
of Authorized Signatory: ________________________________________________
Email
Address of Authorized Signatory: _________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $_________________
Shares:
_________________
Pre-Funded
Warrant Shares: ___________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
Warrant
Shares: __________________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN
Number: ____________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the
Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii)
the Closing shall occur on the first (1st) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be
an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or
the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE
PAGES CONTINUE]
Exhibit
23.2
![](https://www.sec.gov/Archives/edgar/data/1701478/000149315224027219/ex23-2_001.jpg)
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Offering Statement on Form S-1 of our report dated February 23, 2024 with respect to
our audits of the financial statements of Azitra, Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended
December 31, 2023, which report is included in this Annual Report on Form 10-K of Azitra, Inc. for the year ended December 31, 2023.
Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern. We also consent to
the reference to our firm under the heading “Experts” appearing therein.
Grassi
& Co., CPAs, P.C.
Jericho,
New York
July
15, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-1
(Form Type)
Azitra, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
|
|
Security
Type |
|
Security
Class Title |
|
Fee
Calculation or Carry Forward Rule |
|
|
Amount
Registered (a) |
|
|
Proposed
Maximum Offering Price Per
Unit |
|
|
Maximum
Aggregate Offering Price (b) |
|
|
Fee
Rate |
|
Amount of Registration Fee |
|
Fees to Be Paid |
|
Equity |
|
Common Stock
(c) |
|
|
457(o) |
|
|
|
|
|
|
|
|
|
|
$ |
10,000,000 |
|
|
|
$147.60 per
$1,000,000 |
|
$ |
1,476.00 |
|
|
|
Other |
|
Class
A Warrants |
|
|
457(g) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
0.00 |
|
|
|
Equity |
|
Common
Stock issuable upon exercise of Class A Warrants |
|
|
457(o) |
|
|
|
— |
|
|
|
— |
|
|
$ |
20,000,000 |
|
|
|
$147.60 per $1,000,000 |
|
$ |
2,952.00 |
|
|
|
Equity |
|
Pre-Funded Warrants |
|
|
(c) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
0.00 |
|
|
|
Equity |
|
Common stock issuable upon
exercise of Pre-Funded Warrants |
|
|
(c) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
0.00 |
|
|
|
Other |
|
Placement Agent Warrants |
|
|
457(g) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
0.00 |
|
|
|
Equity |
|
Common Stock issuable upon
exercise of Placement Agent Warrants
(d) |
|
|
457(o) |
|
|
|
|
|
|
|
|
|
|
$ |
500,000 |
|
|
|
$147.60 per $1,000,000 |
|
|
73.80 |
|
Fees Previously Paid |
|
|
|
— |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering
Amounts |
|
|
|
$ |
30,500,000.00 |
|
|
|
|
|
$ |
4,501.80 |
|
|
|
Total Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
$ |
-0- |
|
|
|
Total Fee
Offsets |
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Net Fee
Due |
|
|
|
|
|
|
|
|
|
|
$ |
4,501.80 |
|
(a)
In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement
shall be deemed to cover an indeterminate number of additional shares of Common Stock to be offered or issued from stock splits, stock
dividends or similar transactions.
(b)
The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee in accordance with Rule 457(o)
under the Securities Act.
(c)
The registrant may issue pre-funded warrants to purchase shares of common stock in the offering in lieu of issuing shares of common stock.
The purchase price of each pre-funded warrant will equal the price per share at which shares of common shares are being sold to the public
in this offering, minus $0.0001, which constitutes the pre-funded portion of the exercise price, and the remaining unpaid exercise price
of the pre-funded warrant will equal $0.0001 per share (subject to adjustment as provided for therein). The proposed maximum aggregate
offering price of the common stock will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants
issued in the offering, and the proposed maximum aggregate offering price of the pre-funded warrants to be issued in the offering will
be reduced on a dollar-for-dollar basis based on the offering price of any common stock issued in the offering. Accordingly, the proposed
maximum aggregate offering price of the common stock and pre-funded warrants (including the common stock issuable upon exercise of the
pre-funded warrants), if any, is $10,000,000.
(d)
The registrant has agreed to grant the placement agent a warrant to purchase four percent (4%) of the shares of common stock sold in
the offering. The placement agent’s warrant is exercisable at 125% of the public offering price.
Azitra (AMEX:AZTR)
過去 株価チャート
から 7 2024 まで 8 2024
Azitra (AMEX:AZTR)
過去 株価チャート
から 8 2023 まで 8 2024