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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934
Date of Report
(date of earliest event reported): August 16, 2024
Scorpius Holdings, Inc.
(Exact name of registrant
as specified in charter)
Delaware
(State or other jurisdiction
of incorporation)
001-35994 |
26-2844103 |
(Commission File Number) |
(IRS Employer Identification
No.) |
627 Davis Drive, Suite 300
Morrisville, North Carolina 27560
(Address of principal
executive offices and zip code)
(919)
240-7133
(Registrant’s
telephone number including area code)
(Former Name and Former
Address)
Check the appropriate
box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of registrant under any of the following
provisions:
|
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425) |
|
¨ |
Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR
240.14a-12) |
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b)) |
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $0.0002 par value per share |
SCPX |
NYSE American LLC |
Common Stock Purchase Rights |
None |
NYSE American LLC |
Indicate by check mark
whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨ |
|
If an emerging growth
company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01
Entry into a Material Definitive Agreement.
On August 19, 2024, Scorpius
Holdings, Inc. (the “Company”) consummated a public offering (the “Offering”) of 2,428,000 shares (the “Shares”)
of common stock, par value $0.0002 per share (the “common stock”), and 11,947,000 pre-funded warrants (the “Pre-Funded
Warrants”) to purchase up to 11,947,000 shares (the “Pre-Funded Warrant Shares”) of common stock for a purchase price
of $1.00 per Share and $0.9998 per Pre-Funded Warrant, inclusive of Pre-Funded Warrants sold to the Underwriter (as hereinafter defined)
pursuant to its overallotment option, resulting in aggregate gross proceeds of $12.5 million, before deducting underwriting discounts
and other offering expenses. The Company intends to use the net proceeds of the Offering for working capital and general corporate purposes.
The
Pre-Funded Warrants are immediately exercisable for one share of common stock at an exercise price of $0.0002 per share and will remain
exercisable until exercised in full. The exercise price of the Pre-Funded Warrants and number of shares of common stock issuable upon
exercise thereof will adjust in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events. The Pre-Funded Warrants may be exercised on a cashless basis at any time.
A
holder the Pre-Funded Warrants (together with its affiliates) may not exercise any portion of the Pre-Funded Warrant to the extent that
the holder would own more than 4.99% (or 9.99%, at the election of the holder) of the outstanding shares of common stock immediately
after exercise, except that upon at least 61 days’ prior notice from the holder to the Company, the holder may increase the amount
of beneficial ownership of outstanding shares after exercising the holder’s Pre-Funded Warrants up to 9.99% of the number of the
Company’s shares of common stock outstanding immediately after giving effect to the exercise.
In
the event of a Fundamental Transaction, as described in the Pre-Funded Warrants, 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.
The
Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares were offered and sold by the Company pursuant to the Company’s
Registration Statement on Form S-1 (File No. 333-280887), as amended to date, filed by the Company with the U.S. Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), that became effective
on August 6, 2024.
The
foregoing does not purport to be a complete description of the Pre-Funded Warrants and is qualified in its entirety by reference to the
full text of such document, which is filed as Exhibit 4.1 to this Current Report on Form 8-K (this “Form 8-K”) and incorporated
herein by reference.
The
Underwriting Agreement
In
connection with the Offering, on August 16, 2024, the Company entered into an underwriting agreement (the “Underwriting Agreement”)
with ThinkEquity LLC (the “Representative”), as representative of the several underwriters named therein (the “Underwriters”),
pursuant to which the Company agreed to issue and sell to the several Underwriters the Shares and the Pre-Funded Warrants on a firm commitment
basis at a purchase price of $0.93 per Unit and $0.929814 per Pre-Funded Unit (93.0% of the Unit public offering price). The Company
agreed to reimburse the Underwriters $175,000 for expenses in connection with the Offering, plus a non-accountable expense allowance
of 1.0% of the gross proceeds received by the Company. In addition, the Company has granted the Underwriters a 45-day option to
purchase up to an additional 1,875,000 shares of its common stock (and/or Pre-Funded Warrants) solely to cover over-allotments, if any.
The
Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company, other obligations of the parties and termination provisions. In addition, pursuant to the
terms of the Underwriting Agreement, the Company and its executive officers and directors have agreed for a period of ninety (90) days
from the date of the Underwriting Agreement, subject to customary exceptions, without the prior written consent of the Representative,
not to, directly or indirectly, offer pledge, sell, contract to sell, grant, lend or otherwise transfer or dispose of any of shares of
(or enter into any transaction or device that is designed to, or could be expected to, result in the transfer or disposition by any person
at any time in the future of) the Company’s common stock, enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership of shares of the Company’s common stock, make
any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to
the registration of any shares of common stock or securities convertible into or exercisable or exchangeable for common stock or any
other securities of the Company or publicly disclose the intention to do any of the foregoing. Additionally, the Company agreed that
for a period of nine months after the closing of the Offering it will not directly or indirectly enter into any “at-the-market,”
continuous equity, equity lines, or variable rate transaction, offer to sell, sell, contract to sell, grant any option to sell or otherwise
dispose of shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock, without
the prior written consent of the Representative.
In
addition, the Underwriting Agreement provides that for a period of eight months from the date of the closing of the Offering, the Company
will grant to the Representative, an irrevocable right of first refusal to act as sole investment banker, sole book-runner and/or sole
placement agent, at the Representative’s sole discretion, for each and every future public and private equity and debt offering,
including all equity linked financings, during such eight month period for the Company, or any successor to or any subsidiary of the
Company, on terms agreed to by both the Company and the Representative.
The
foregoing does not purport to be a complete description of the Underwriting Agreement and is qualified in its entirety by reference to
the full text of such document, which is filed as Exhibit 1.1 to this Form 8-K and incorporated herein by reference.
Item
7.01. Regulation FD Disclosure.
The
Company issued press releases announcing the pricing and closing of the Offering on August 16, 2024 and August 19, 2024, respectively.
Copies of the press releases are furnished herewith as Exhibit 99.1 and Exhibit 99.2 and are incorporated by reference herein. The information
in this Item 8.01, including Exhibit 99.1 and Exhibit 99.2 attached hereto, is being furnished and shall not be deemed “filed”
for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it be deemed
incorporated by reference in any of the Company’s filings under the Securities Act, or the Exchange Act, whether made before or
after the date hereof, except as shall be expressly set forth by specific reference to this Form 8-K in such filing.
Item
8.01. Other Events.
On
August 16, 2024, the Representative exercised the over-allotment option in full and the Company issued to the Representative additional
Pre-Funded Warrants to purchase up to 1,875,000 shares of common stock.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: August 19, 2024 |
SCORPIUS HOLDINGS, INC. |
|
|
|
|
|
|
By: |
/s/ Jeffrey
Wolf |
|
Name: |
Jeffrey Wolf |
|
Title: |
Chairman, President and
Chief Executive Officer |
Exhibit 1.1
UNDERWRITING
AGREEMENT
between
SCORPIUS HOLDINGS,
INC.
and
THINKEQUITY
LLC
as
Representative of the Several Underwriters
SCORPIUS HOLDINGS,
INC.
UNDERWRITING
AGREEMENT
New York, New
York
August 16, 2024
ThinkEquity LLC
As Representative of the several Underwriters
named on Schedule 1 attached hereto
17 State Street, 41st Floor
New York, New York 10004
Ladies and Gentlemen:
The
undersigned, Scorpius Holdings, Inc., a corporation formed under the laws of the Delaware (collectively with its subsidiaries and affiliates,
including, without limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) as being subsidiaries
or affiliates of the “Company”), hereby confirms its agreement (this “Agreement”) with ThinkEquity
LLC (hereinafter referred to as “you” (including its correlatives) or the “Representative”) and with the
other underwriters named on Schedule 1 hereto for which the Representative is acting as representative (the Representative and
such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”)
as follows:
1.
Purchase and Sale of Shares.
1.1
Firm Securities.
1.1.1.
Nature and Purchase of Firm Securities.
(i)
On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of 12,500,000 shares (each, a “Firm
Share” and in the aggregate, the “Firm Shares”)
of the Company’s common stock, par value $0.0002 per share (the “Common Stock”)
and/or pre-funded warrants (each, a “Firm Pre-Funded Warrant”, and in the aggregate,
the “Firm Pre-Funded Warrants”) to purchase one share of Common Stock at an exercise
price of $0.0002 per share (the “Pre-Funded Warrant Shares”) until such time as
the Firm Pre-Funded Warrants are exercised in full, subject to adjustment as provided in the Firm Pre-Funded Warrants.
(ii)
The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares and Firm Pre-Funded Warrants
set forth opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $0.93 per
Firm Share (93.0% of the per Firm Share offering price), $0.9298 per Firm Pre-Funded Warrant (93.0% of the per Firm Share offering price
less $0.0002). The Firm Shares and the Firm Pre-Funded Warrants (collectively, the “Firm Securities”)
are to be offered initially to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section
2.1.1 hereof).
1.1.2.
Shares Payment and Delivery.
(i)
Delivery and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on August 19, 2024 provided that the NYSE American
has approved or noted it has no objections to such delivery, at such earlier or later time as permitted by the NYSE American, or at such
earlier time as shall be agreed upon by the Representative and the Company, at the offices of Sullivan & Worcester LLP, 1251 Avenue
of the Americas, New York, NY 10020 (“Representative Counsel”),
or at such other place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representative and
the Company. The hour and date of delivery and payment for the Firm Securities is called the “Closing Date.”
(ii)
Payment for the Firm Securities shall be made on the Closing Date by wire transfer in U.S. dollars in Federal (same day) funds, payable
to the order of the Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the
Firm Securities (or through the facilities of the Depository Trust Company (“DTC”))
for the account of the Underwriters. The Firm Securities shall be registered in such name or names and in such authorized denominations
as the Representative may request in writing at least two (2) full Business Days prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Securities except upon tender of payment by the Representative for all of the Firm Securities.
The term “Business Day” means any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York.
1.2
Over-allotment Option.
1.2.1.
Option Securities. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Securities,
the Company hereby grants to the Underwriters an option to purchase up to 1,875,000 additional shares of Common Stock (the “Option
Shares”) and/or additional Firm Pre-Funded Warrants (the “Option Pre-Funded Warrants”
and together with the Firm Pre-Funded Warrants, the “Pre-Funded Warrants”), representing
fifteen percent (15%) of the Firm Securities sold in the offering, from the Company (the “Over-allotment Option”).
Such 1,875,000 additional Option Shares and/or additional Option Pre-Funded Warrants, the net proceeds of which will be deposited with
the Company’s account, are hereinafter referred to as “Option Securities.”
The purchase price to be paid per Option Share shall be equal to the price per Firm Share set forth in Section 1.1.1 hereof. The purchase
price to be paid per Option Pre-Funded Warrant shall be equal to the price per Firm Pre-Funded Warrant set forth in Section 1.1.1 hereof.
The Firm Securities and the Option Securities are hereinafter referred to together as the “Public Securities.”
The offering and sale of the Public Securities is hereinafter referred to as the “Offering.”
1.2.2.
Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative
as to all (at any time) or any part (from time to time) of the Option Shares within 45 days after the Effective Date only if the Closing
Date has occurred. The Underwriters shall not be under any obligation to purchase any Option Securities prior to the exercise of the
Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the
Representative, which must be confirmed in writing by overnight mail or facsimile or other electronic transmission setting forth the
number of Option Securities to be purchased and the date and time for delivery of and payment for the Option Securities (the “Option
Closing Date”), which shall not be later than one (1) full Business Days after the date of the
notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of Representative Counsel or
at such other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the
Representative. If such delivery and payment for the Option Shares does not occur on the Closing Date, the Option Closing Date will be
as set forth in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Securities, subject
to the terms and conditions set forth herein, (i) the Company shall become obligated to sell to the Underwriters the number of Option
Securities specified in such notice and (ii) each of the Underwriters, acting severally and not jointly, shall purchase that portion
of the total number of Option Securities then being purchased as set forth in Schedule 1 opposite the name of such Underwriter.
1.2.3.
Payment and Delivery. Payment for the Option Securities shall be made on the Option Closing Date by wire transfer in Federal (same
day) funds, payable to the order of the Company upon delivery to you of certificates (in form and substance satisfactory to the Underwriters)
representing the Option Securities (or through the facilities of DTC) for the account of the Underwriters. The Option Securities shall
be registered in such name or names and in such authorized denominations as the Representative may request in writing at least one (1)
full Business Day prior to the Option Closing Date. The Company shall not be obligated to sell or deliver the Option Shares except upon
tender of payment by the Representative for applicable Option Securities. The Option Closing Date may be simultaneous with, but not earlier
than, the Closing Date, and in the event that such time and date are simultaneous with the Closing Date, the term “Closing Date”
share refer to the time and date of delivery of the Firm Securities and the Option Securities.
2.
Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time
(as defined below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1
Filing of Registration Statement.
2.1.1.
Pursuant to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (File No. 333- 280887), and one or more amendments thereto, including any related prospectus or
prospectuses, for the registration of the Public Securities under the Securities Act of 1933, as amended (the “Securities
Act”), which registration statement and amendments thereto have been prepared by the Company
in all material respects in conformity with the requirements of the Securities Act and the rules and regulations of the Commission under
the Securities Act (the “Securities Act Regulations”) and contains and will contain
all material statements that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations.
Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration
statement became effective (including the Preliminary Prospectus (as defined below) included in the registration statement, financial
statements, schedules, exhibits and all other documents filed as a part thereof or incorporated by reference therein and all information
deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations (the “Rule
430A Information”), is referred to herein as the “Registration Statement.”
If the Company files any registration statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the
term “Registration Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement
has been declared effective by the Commission as of the date hereof.
Each
prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information
that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary
Prospectus.” The Preliminary Prospectus, subject to completion, dated August 1, 2024, that was
included in the Registration Statement immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.”
The final prospectus in the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.”
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included
in the Registration Statement.
“Applicable
Time” means 9:00 p.m., Eastern time, on the date of this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Securities Act Regulations (“Rule 433”), including without limitation
any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations) relating to the Public Securities
that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication”
within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with
the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Public Securities or of the Offering that does
not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended
for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule
433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified
in Schedule 2-B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an
Issuer General Use Free Writing Prospectus.
“Pricing
Disclosure Package” means any Issuer General Use Free Writing Prospectus issued at or prior to
the Applicable Time, the Pricing Prospectus dated August 1, 2024 and the information included on Schedule 2-A hereto, all considered
together.
For
the purposes of this Agreement “Knowledge” means,
when referring to the ‘knowledge’ of the Company, or any similar phrase or qualification based on knowledge, the actual knowledge
of Company’s officers and/or directors, and the knowledge that each such person would have obtained after making due and appropriate
inquiry with respect to the particular matter in question.
2.1.2.
Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 001-35994) providing for the registration
pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), of the shares of Common Stock, which registration statement complied in all material respects
with the Exchange Act. The registration of such shares of Common Stock and related Form 8-A under the Exchange Act has been declared
effective by the Commission on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the shares of Common Stock under the Exchange Act, nor has the Company received any notification
that the Commission is contemplating terminating such registration.
2.2
Stock Exchange Listing. The shares of Common Stock have been approved for listing on the NYSE American (the “Exchange”)
and the Company has taken no action designed to, or likely to have the effect of, delisting the shares of Common Stock from the Exchange,
nor has the Company received any notification that the Exchange is contemplating terminating such listing except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. The Company has submitted, or immediately following the date
hereof will submit, the Listing of Additional Shares Notification Form with the Exchange with respect to the Offering.
2.3
No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
2.4
Disclosures in Registration Statement.
2.4.1.
Compliance with Securities Act and 10b-5 Representation.
(i)
Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective (including each
deemed effective date with respect to the Underwriters pursuant to Rule 430A or otherwise under the Securities Act) complied and will
comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus,
including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto,
and the Prospectus, at the time each was or will be filed with the Commission, complied and will comply in all material respects with
the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters
for use in connection with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii)
Neither the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time or at the Closing Date
or at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits
or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii)
The Pricing Disclosure Package, as of the Applicable Time or at the Closing Date or at any Option Closing Date (if any), did not, does
not and will not include 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; and any Issuer Limited Use Free Writing Prospectus
hereto does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, and any such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus
as of the Applicable Time, did not include an 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; provided, however, that this
representation and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written
information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement,
the Pricing Disclosure Package or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that
such information provided by or on behalf of any Underwriter consists solely of the following disclosure contained in the “Underwriting”
section of the Prospectus: (i) the third sentence of the subsection entitled “Discounts, Commissions and Reimbursements”
related to concessions; (ii) the first four paragraphs under the subsection entitled “Stabilization”; (iii) the subsection
entitled “Electronic Offer, Sale and Distribution of Shares”; and (iv) the subsection entitled “Other Relationships”
(the “Underwriters’ Information”).
(iv)
Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time
of any filing with the Commission pursuant to Rule 424(b), or at the Closing Date or at any Option Closing Date, included, includes or
will include an untrue statement of a material fact or omitted, omits or will 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; provided, however, that this representation
and warranty shall not apply to the Underwriters’ Information.
(v)
The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the Securities Act Regulations and none of such documents contained any untrue statement
of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the Securities Act Regulations, 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, in the light of the circumstances under which
they were made, not misleading.
2.4.2.
Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus conform in all material respects to the descriptions thereof contained or incorporated by reference therein and there
are no agreements or other documents required by the Securities Act and the Securities Act Regulations to be described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement
or to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, that have not been
so described, filed or incorporated by reference. Each agreement or other instrument (however characterized or described) to which the
Company or any Subsidiary (as defined in Section 2.7 below) is a party or by which it is or may be bound or affected and (i) that
is referred to or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (ii) is
material to the Company’s or any Subsidiary’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 therefor
may be brought. None of such agreements or instruments has been assigned by the Company or any Subsidiary, and none of the Company, its
Subsidiaries nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder, except for a
default or event which would not reasonably be expected to result in a Material Adverse Change (as defined below). To the Company’s
knowledge, performance by the Company or any Subsidiary of the material provisions of such agreements or instruments will not result
in a violation of any existing applicable law, rule, regulation, ordinance, judgment, order or decree of any governmental or regulatory
agency, body, authority or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of its assets or
businesses (each, a “Governmental Entity”), including,
without limitation, those relating to environmental laws and regulations.
2.4.3.
Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit
of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
2.4.4.
Regulations. The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects
of federal, state, local and all foreign regulation on the Offering and the Company’s business as currently contemplated are accurate,
correct and complete in all material respects and no other such regulations are required to be disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus which are not so disclosed.
2.4.5.
No Other Distribution of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Offering other than any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus
and other materials, if any, permitted under the Securities Act and consistent with Section 3.2 below.
2.5
Changes After Dates in Registration Statement.
2.5.1.
No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change
(including in the financial position or results of operations of the Company or its Subsidiaries), nor any change or development in the
business of the Company which, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse
change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, general affairs, management,
condition (financial or otherwise), results of operations, stockholders’ equity, business, assets, properties or prospects of the
Company and any Subsidiary, taken as a whole (a “Material Adverse Change”);
(ii) there have been no material transactions entered into by the Company or its Subsidiaries, other than as contemplated pursuant
to this Agreement; (iii) no officer (as defined in Rule 16a-1(f) of the Exchange Act) or director of the Company or its Subsidiaries
has resigned from any position with the Company; and (iv) neither the Company nor any Subsidiary has sustained any material loss or interference
with its business or properties from fire, explosion, flood, earthquake, hurricane, accident or other calamity. The Company does not
have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Public Securities
contemplated by this Agreement, 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 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 one Trading Day (as defined below) prior to the date that this representation is made.
2.5.2.
Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, 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.
2.5.3.
Disclosures in Commission Filings. Since January 1, 2022, (i) none of the Company’s filings with the Commission, when filed,
contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and (ii) the Company has made all filings with the Commission
required under the Exchange Act and the Securities Act Regulations, except where the failure to make any such filing could not reasonably
be expected to result in a Material Adverse Change).
2.6
Independent Accountants. To the knowledge of the Company, BDO USA, P.C. (the “Auditor”),
whose report is filed with the Commission and incorporated by reference into the Registration Statement, the Pricing Disclosure Package
and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations
and the Public Company Accounting Oversight Board. The Auditor has not, during the periods covered by the financial statements included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.7
Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position
and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have
been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”),
consistently applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit
adjustments that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting
schedules included in or incorporated by reference into the Registration Statement present fairly the information required to be stated
therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included
in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities
Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related notes, if any, included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been properly compiled
and prepared in accordance with the applicable requirements of the Securities Act, the Securities Act Regulations, the Exchange Act and
the Exchange Act Regulations and present fairly the information shown therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
All disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, or incorporated or deemed
incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations
of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the
extent applicable. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance
sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated
entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the date of the latest audited
financial statements (a) neither the Company nor any of its direct and indirect subsidiaries, including each entity disclosed or described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus as being a subsidiary of the Company (each, a “Subsidiary”
and, collectively, the “Subsidiaries”), has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company
has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been
any change in the capital stock of the Company or any of its Subsidiaries, or, other than in the course of business, any grants under
any stock compensation plan, and (d) there has not been any material adverse change in the Company’s long-term or short-term debt.
2.8
Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date the
adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing
Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time and on the Closing Date and any Option Closing
Date, there will be no stock options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares
of Common Stock of the Company or any security convertible or exercisable into shares of Common Stock of the Company, or any contracts
or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
2.9
Valid Issuance of Securities, etc.
2.9.1.
Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by
this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission, rights of first refusal, rights of participation or similar rights with respect thereto or put rights, and are not subject
to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights,
rights of first refusal or rights of participation of any holders of any security of the Company or similar contractual rights granted
by the Company. The authorized shares of Common Stock conform in all material respects to all statements relating thereto contained in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. The offers and sales of the outstanding shares of Common
Stock 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 of such securities, exempt from such registration requirements.
2.9.2.
Securities Sold Pursuant to this Agreement. The Firm Shares and Option Shares have been duly authorized for issuance and sale
and, when issued and paid for, the Firm Shares and Option Shares will be validly issued, fully paid and non-assessable; the holders thereof
are not and will not be subject to personal liability by reason of being such holders; the Public 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;
and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities has been duly and validly
taken. The Public Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. All corporate action required to be taken for the authorization, issuance and sale
of the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants has been duly and validly taken; the shares of Common Stock issuable
upon exercise of the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants (the “Underlying
Shares”) have been duly authorized and reserved for issuance by all necessary corporate action
on the part of the Company and when issued and paid for in accordance with the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants,
such Underlying Shares will be validly issued, fully paid and non-assessable and the holders thereof are not and will not be subject
to personal liability by reason of being such holders and such shares of Common Stock 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.
2.10
Registration Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities
of the Company have the right to require the Company to register any such securities of the Company under the Securities Act or to include
any such securities in a registration statement to be filed by the Company.
2.11
Validity and Binding Effect of Agreements. This Agreement and the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants
have been duly and validly authorized by the Company, and, when executed and delivered, will constitute, the valid and binding agreements
of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) 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 therefor may be brought.
2.12
No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Firm Pre-Funded Warrants and
the Option Pre-Funded Warrants and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the
lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a
material default under, or result in the creation, modification, termination or imposition of any lien, charge, mortgage, pledge, security
interest, claim, equity, trust or other encumbrance, preferential arrangement or restriction of any kind whatsoever upon any portion
of any property or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, note, lease, loan agreement
or any other agreement or instrument, license or permit to which the Company or any of its Subsidiaries is a party or as to which any
property of the Company or any Subsidiary is a party or any of their assets are bound, except as set forth in the Registration Statement,
Pricing Disclosure Package and Prospectus; (ii) result in any violation of the provisions of the Company’s Articles of Incorporation
(as the same may be amended or restated from time to time, the “Articles”)
or the by-laws of the Company (as the same may be amended or restated from time to time, the “Bylaws”)
or the charter, by-laws or other organizational documents of any Subsidiary; or (iii) violate any existing applicable law, rule,
regulation, judgment, order or decree of any Governmental Entity (including, without limitation, those promulgated by the Food and Drug
Administration of the U.S. Department of Health and Human Services (the “FDA”) or
by any foreign, federal, state or local regulatory authority performing functions similar to those performed by the FDA).
2.13
No Defaults; Violations. Neither the Company nor any Subsidiary is in material default in the due performance and observance of
any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement,
or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which
the Company or such Subsidiary is a party or by which the Company or such Subsidiary may be bound or to which any of the properties or
assets of the Company or any Subsidiary is subject. Neither the Company nor any Subsidiary is in violation of any term or provision of
the Articles or Bylaws or the charter, by-laws or other organizational documents of any Subsidiary, or in violation of any franchise,
license, permit, applicable law, rule, regulation, judgment, order or decree of any Governmental Entity.
2.14
Corporate Power; Licenses; Consents.
2.14.1.
Conduct of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the
Company has all requisite corporate power and authority, and has all necessary consents, authorizations, approvals, registrations, orders,
licenses, certificates, qualifications, registrations and permits of and from all governmental regulatory officials and bodies that it
needs as of the date hereof to conduct its business purpose as described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
2.14.2.
Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and the Firm
Pre-Funded Warrants and the Option Pre-Funded Warrants and to carry out the provisions and conditions hereof and thereof, and all consents,
authorizations, approvals, registrations, orders, licenses, certificates, qualifications, registrations, permits and orders required
in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or
other body is required for the valid issuance, sale and delivery of the Public Securities and the consummation of the transactions and
agreements contemplated by this Agreement and the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants and as contemplated by
the Registration Statement, the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal, state and foreign
securities laws, the rules and regulations of the Exchange and the rules and regulations of the Financial Industry Regulatory Authority,
Inc. (“FINRA”).
2.15
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors, officers and affiliate principal stockholders and delivered to the Representative
in connection with this Offering (the “Insiders”) as supplemented by all information
concerning the Company’s directors, officers and principal stockholders as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined in Section 2.26 below), provided to the Underwriters,
is true and correct in all material respects and the Company has not become aware of any information which would cause the information
disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.16
Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or any Subsidiary,
or, to the Company’s knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or in connection with the Company’s listing application for the listing of the Common
Stock on the Exchange, or which adversely affects or challenges the legality, validity or enforceability of this Agreement or the issuance
of the Public Securities.
2.17
Good Standing. The Company has been duly organized and is validly existing as a corporation and in good standing under the laws
of its state of organization as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to be so
qualified or in good standing, singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse
Change.
2.18
Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with reputable insurers, in such
amounts and covering such risks which the Company believes are adequate, including, but not limited to, directors and officers insurance
coverage at least equal to $5,000,000 and all such insurance is in full force and effect. The Company and its Subsidiaries have no reason
to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Change.
2.19
Transactions Affecting Disclosure to FINRA.
2.19.1.
Finder’s Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there
are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination
fee by the Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or
understandings of the Company or, to the Company’s knowledge, its stockholders that may affect the Underwriters’ compensation
as determined by FINRA.
2.19.2.
Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company has not made 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; or (iii) any person or entity that has any direct
or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the date of this Agreement, other
than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.19.3.
Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
2.19.4.
FINRA Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the
Company's securities or (iii) beneficial owner of the Company's unregistered equity securities which were acquired during the 180-day
period immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA member participating
in the Offering (as determined in accordance with the rules and regulations of FINRA). The Company (i) does not have any material lending
or other relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from
the sale of the Public Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
2.19.5.
Information. All information provided by the Company and its Subsidiaries in its, and to the knowledge of the Company, all information
provided by their officers, directors and affiliate principal stockholders in their, FINRA questionnaire to Representative Counsel specifically
for use by Representative Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true,
correct and complete in all material respects.
2.20
Foreign Corrupt Practices Act. The Company’s accounting controls and procedures are sufficient to cause the Company to comply
in all material respects with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively,
the “FCPA”). None of the Company
and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company and its
Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, has, directly or indirectly, given or agreed to
give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in
a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (i) might
subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding; (ii) if not given
in the past, might have had a Material Adverse Change; (iii) if not continued in the future, might adversely affect the assets,
business, operations or prospects of the Company; (iv) violated or is in violation of any provision of the FCPA or any applicable non-U.S.
anti-bribery statute or regulation; (v) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (vi)
received notice of any investigation, proceeding or inquiry by any Governmental Entity regarding any of the matters in clauses (i)-(v)
above; and the Company and, to the knowledge of the Company, the Company’s affiliates have conducted their respective businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith.
2.21
Compliance with OFAC. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or business
with any person, or in any country or territory that currently is the subject or target of to any U.S. sanctions administered by OFAC.
2.22
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in either the Registration Statement, Pricing Disclosure Package or Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
2.23
Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money
Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving
the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
2.24
Regulatory Filings and Permits. The Company and its Subsidiaries have such permits, licenses, clearances, registrations, exemptions,
patents, franchises, certificates of need and other approvals, consents and other authorizations (“Permits”) issued by the
appropriate domestic or foreign regional, federal, state, or local regulatory agencies or bodies necessary to conduct the business of
the Company, (collectively, the “Regulatory Permits”), except for any of the foregoing that would not reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect; the Company is in compliance in all material respects with the
requirements of the Regulatory Permits, and all of such Regulatory Permits are valid and in full force and effect; the Company has not
received any notice of proceedings relating to the revocation, termination, modification or impairment of rights of any of the Regulatory
Permits that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected
to result in a Material Adverse Effect.
2.25
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.26
Lock-Up Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s officers, directors and each
affiliate owner of at least 5% or more of the Company’s outstanding shares of Common Stock requested by the Representative (or
securities convertible into or exercisable for shares of Common Stock) (collectively, the “Lock-Up
Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative
an executed Lock-Up Agreement, substantially in the form attached hereto as Exhibit A (the “Lock-Up Agreement”),
prior to the execution of this Agreement.
2.27
Subsidiaries. All material Subsidiaries are duly organized and in good standing under the laws of its jurisdiction of organization
or incorporation, and each Subsidiary is qualified to do business and in good standing in each jurisdiction in which its ownership or
lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material
adverse effect on the assets, business or operations of the Company taken as a whole. The Company’s ownership and control of each
Subsidiary is as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.28
Related Party Transactions.
2.28.1.
Business Relationships. There are no business relationships or related party transactions involving the Company or any other person
(within the scope of Item 404 of Regulation S-K) required to be described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus that have not been described as required.
2.29
No Relationships with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company on the
one hand, and the directors, officers, 5% or greater stockholders, customers or suppliers of the Company or any of the Company’s
affiliates on the other hand, which is required to be described in the Pricing Disclosure Package and the Prospectus or a document incorporated
by reference therein and which is not so described.
2.29.1.
No Unconsolidated Entities. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates (as such term
is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited to, any structured finance, special
purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s liquidity or the availability
of or requirements for its capital resources required to be described in the Pricing Disclosure Package and the Prospectus or a document
incorporated by reference therein which have not been described as required.
2.29.2.
No Loans or Advances to Affiliates. There are no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of (i) any of the officers or directors
of the Company, (ii) any other affiliates of the Company or (iii) any of their respective family members, except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, which are, in the case of clauses (ii) and (iii), required
to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus.
2.30
Board of Directors. The Board of Directors of the Company is comprised of the persons set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. The qualifications of the persons serving as board members and the overall composition
of the board comply with the Exchange Act, the Securities Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder
(the “Sarbanes-Oxley Act”) applicable
to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the Board of Directors of the Company
qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of
the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent,”
as defined under the listing rules of the Exchange.
2.31
Sarbanes-Oxley Compliance.
2.31.1.
Disclosure Controls. Except with respect to disclosure regarding a weakness in internal controls described in Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Company has developed and currently maintains disclosure controls and procedures
that will comply with Rule 13a-15 or 15d-15 under the Securities Act Regulations, and such controls and procedures are effective to ensure
that all material information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation
of the Company’s Exchange Act filings and other public disclosure documents.
2.31.2.
Compliance. Except with respect to disclosure regarding a weakness in internal controls described in Registration Statement, the
Pricing Disclosure Package and the Prospectus, the Company is, or at the Applicable Time and on the Closing Date will be, in material
compliance with the provisions of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken
reasonable steps to ensure the Company’s future compliance (not later than the relevant statutory and regulatory deadlines therefor)
with all of the material provisions of the Sarbanes-Oxley Act.
2.32
Accounting Controls. Except with respect
to disclosure regarding a weakness in internal controls described in Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company and its Subsidiaries maintain systems of “internal control over financial reporting” (as defined under Rules
13a-15 and 15d-15 under the Securities Act Regulations) that comply with the requirements of the Exchange Act and have been designed
by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, including, but not limited to, 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. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company is
not aware of any material weaknesses (as defined in Rule 12b-2 of the Exchange Act) in its internal controls. The Company’s auditors
and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses (as defined in Rule 12b-2 of the Exchange Act) in the design or operation of internal controls over financial reporting which
are known to the Company’s management and that have adversely affected or are reasonably likely to adversely affect the Company’
ability to record, process, summarize and report financial information; and (ii) any fraud known to the Company’s management, whether
or not material, that involves management or other employees who have a significant role in the Company’s internal controls over
financial reporting. Since the date of the latest audited financial statements included in the Pricing Disclosure Package, there has
been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting.
2.33
No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to register
as an “investment company,” as defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
2.34
No Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is imminent.
2.35
Intellectual Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets and similar rights (“Intellectual Property Rights”)
necessary for the conduct of the business of the Company and its Subsidiaries as currently carried on and as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any
of its Subsidiaries necessary for the conduct of its business as currently carried on and as described in the Registration Statement
and the Prospectus will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights
of others. Neither the Company nor any of its Subsidiaries has received any notice alleging any such infringement, fee or conflict with
asserted Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Change: (i) to the knowledge of the Company, there is no infringement, misappropriation or violation by third parties
of any of the Intellectual Property Rights owned by the Company; (ii) there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others challenging the rights of the Company in or to any such Intellectual Property Rights, and
the Company is unaware of any facts which would form a reasonable basis for any such claim, that would, individually or in the aggregate,
together with any other claims in this Section 2.35, reasonably be expected to result in a Material Adverse Change; (iii) the Intellectual
Property Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed to the Company have
not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual
Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim that would, individually
or in the aggregate, together with any other claims in this Section 2.35, reasonably be expected to result in a Material Adverse Change;
(iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company
infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of others, the Company
has not received any written notice of such claim and the Company is unaware of any other facts which would form a reasonable basis for
any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.35, reasonably be expected
to result in a Material Adverse Change; and (v) to the Company’s knowledge, no employee of the Company is in or has ever been in
violation in any material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer
where the basis of such violation relates to such employee’s employment with the Company, or actions undertaken by the employee
while employed with the Company and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change.
To the Company’s knowledge, all material technical information developed by and belonging to the Company which has not been patented
has been kept confidential. The Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual
Property Rights of any other person or entity that are required to be set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and are not described therein. The Registration Statement, the Pricing Disclosure Package and the Prospectus
contain in all material respects the same description of the matters set forth in the preceding sentence. None of the technology employed
by the Company has been obtained or is being used by the Company in violation of any contractual obligation binding on the Company or,
to the Company’s knowledge, any of its officers, directors or employees, or otherwise in violation of the rights of any persons.
All
licenses for the use of the Intellectual Property described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
are in full force and effect in all material respects and are enforceable by the Company and, to the Company’s knowledge, the other
parties thereto, in accordance with their 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 therefor
may be brought. None of such agreements or instruments has been assigned by the Company, and the Company has not, and to the Company’s
knowledge, no other party is in default thereunder and no event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a default thereunder.
2.36
Taxes. Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing
authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries
has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed
against the Company or such respective Subsidiary other than those being contested. 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. Except as disclosed in writing
to the Underwriters, (i) no issues have been raised (and are currently pending) by any taxing authority in connection with any of the
returns or taxes asserted as due from the Company or its Subsidiaries, and (ii) no waivers of statutes of limitation with respect to
the returns or collection of taxes have been given by or requested from the Company or its Subsidiaries. The term “taxes”
means 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.
2.37
ERISA Compliance. The Company and its Subsidiaries, and any “employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its Subsidiaries or its “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the
Company, any member of any group of organizations described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the “Code”)
of which the Company or any Subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit plan” established or maintained by the Company, any Subsidiary or
any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company, any Subsidiary or any of
its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). None of the Company, any Subsidiary nor any of its ERISA Affiliates has incurred or reasonably expects to incur
any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company,
any Subsidiary or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and,
to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.38
Compliance with Laws. Except as set forth in the SEC Reports (as such term is defined below), the Company and each of the Subsidiaries:
(A) is and at all times has been in compliance with all statutes, rules, regulations, ordinances, judgments, orders and decrees of all
Governmental Entities applicable to the business of the Company and its Subsidiaries (“Applicable Laws”), except as could
not, individually or in the aggregate, reasonably be expected to result in or have a Material Adverse Change; ; (B) has not received
any warning letter, untitled letter or other correspondence or notice from any other Governmental Entity alleging or asserting noncompliance
with any Applicable Laws or any licenses, consents, certificates, approvals, clearances, authorizations, permits, orders and supplements
or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) possesses all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation
of any term of any such Authorizations; (D) has not received notice of any claim, action, suit, litigation, proceeding, hearing, enforcement,
investigation, inquiry, arbitration or other action from any Governmental Entity or third party alleging that any product operation or
activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Entity or third party
is considering any such claim, litigation, arbitration, action, suit, litigation proceeding, hearing, enforcement, investigation, inquiry,
arbitration or other action; (E) has not received notice that any Governmental Entity has taken, is taking or intends to take action
to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental Entity considering such action;
(F) has filed, obtained, maintained or submitted all material reports, documents, forms, filings, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct on the date filed
(or were corrected or supplemented by a subsequent submission); and (G) has not, either voluntarily or involuntarily, initiated, conducted,
or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning,
“dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any
alleged product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate
any such notice or action.
2.39
Compliance with Securities Laws. Except for the Company’s most recent annual report on Form 10-K for the fiscal year ending
December 31, 2023, and Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, and
the regulations promulgated thereunder, each as amended, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (“SEC Reports”).
As of the respective dates they were filed (except if amended, updated or superseded by a filing made by the Company with the Commission
prior to the Effective Date, then on the date of such filing), the SEC Reports complied in all material respects with the requirements
of the Securities Act or the Exchange Act.
2.40
Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.41
Environmental Laws. The Company and its Subsidiaries are in compliance with all foreign, federal, state, local and foreign legally-binding
rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection
of health and safety (to the extent relating to exposure to hazardous or toxic substances) or the environment which are applicable to
their businesses (“Environmental Laws”),
except where the failure to comply would not, singularly or in the aggregate, result in a Material Adverse Change. There has been no
storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the Company or any of its Subsidiaries (or, to the Company’s knowledge,
any other entity for whose acts or omissions the Company or any of its Subsidiaries is or may otherwise be liable) upon any of the property
now or previously owned or leased by the Company or any of its Subsidiaries, or upon any other property, in violation of any Environmental
Law or which would, under any Environmental Law, give rise to any liability; and there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company has knowledge. In the ordinary course of business, the Company and its Subsidiaries conduct
periodic reviews of the effect of Environmental Laws on their business and assets, in the course of which they identify and evaluate
any associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or governmental permits issued thereunder, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such reviews, the Company and its Subsidiaries have reasonably concluded
that such associated costs and liabilities would not reasonably be expected to result, singularly or in the aggregate, in a Material
Adverse Change.
2.42
Real Property. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
and its Subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real
or personal property which are material to the business of the Company and each of its Subsidiaries taken as a whole, in each case free
and clear of all liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its
Subsidiaries; and all of the leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise,
and under which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has received any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
2.43
Contracts Affecting Capital. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates (as such term
is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s or its
Subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described or incorporated
by reference as required.
2.44
Loans to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of any of the officers
or directors of the Company, its Subsidiaries or any of their respective family members, except as disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
2.45
Smaller Reporting Company. As of the time of filing of the Registration Statement, the Company was, and currently is, a “smaller
reporting company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
2.46
Industry Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and
accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.47
Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the “Federal Reserve Board”),
and none of the proceeds of Offering will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security,
for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for
any other purpose which might cause any of the shares of Common Stock to be considered a “purpose credit” within the meanings
of Regulation T, U or X of the Federal Reserve Board.
2.48
Minute Books. The minute books of the Company and each Subsidiary have been made available to the Underwriters and Representative
Counsel, and such books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee),
other than those of the special committee of the Board, and stockholders of the Company (or analogous governing bodies and interest holders,
as applicable) and each Subsidiary, and since January 1, 2022 through the date of the latest meeting and action, and (ii) accurately
in all material respects reflect all transactions referred to in such minutes. There are no material transactions, agreements, dispositions
or other actions of the Company or any Subsidiary that were not properly approved and/or accurately and fairly recorded in the minute
books of the Company or such Subsidiary, as applicable.
2.49
Integration. 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 the Offering
to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such
securities under the Securities Act.
2.50
No Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent
of the Representative) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under Regulation M of 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 Public Securities.
2.51
Confidentiality and Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the
Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity of the
Company or be expected to result in a Material Adverse Change.
2.52
Testing-the-Waters Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than
Testing-the-Waters Communications with the written consent of the Representative and with entities that are qualified institutional buyers
within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501
under the Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The
Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The
Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto. “Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in
reliance on Section 5(d) of the Securities Act. “Written Testing-the-Waters Communication”
means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
3.
Covenants of the Company. The Company covenants and agrees as follows:
3.1
Amendments to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement
to the Registration Statement, Preliminary Prospectus, Pricing Disclosure Package or Prospectus proposed to be filed after the date hereof
and not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2
Federal Securities Laws.
3.2.1.
Compliance. The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 424(b) and Rule 430A of the Securities
Act Regulations, and will notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement shall become effective or any amendment or supplement to any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus shall have been filed and when any post-effective amendment to the Registration Statement shall become effective;
(ii) of the receipt of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus or for additional
information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment or of any order preventing or suspending the use of any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or of the suspension of the qualification of the Public Securities and for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or
8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the Offering. The Company shall effect all filings required under Rule 424(b)
of the Securities Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)),
and shall take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company
shall use its reasonable best efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
3.2.2.
Continued Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement
and in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the
Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule
172”), would be) required by the Securities Act to be delivered in connection with sales of the
Public Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of Representative
Counsel or counsel for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) amend or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure
Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered
to a purchaser or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus,
as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will
promptly (A) give the Representative notice of such event; (B) prepare any amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply with such requirements
and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or
supplement and (C) file with the Commission any such amendment or supplement; provided, however, that the Company
shall not file or use any such amendment or supplement to which the Representative or Representative Counsel shall reasonably object.
The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably
request. The Company has given the Representative notice of any filings made pursuant to the Exchange Act or the Exchange Act Regulations
within 48 hours prior to the Applicable Time. The Company shall give the Representative notice of its intention to make any such filing
from the Applicable Time until the later of the Closing Date and the exercise in full or expiration of the Over-allotment Option and
will furnish the Representative with copies of the related document(s) a reasonable amount of time prior to such proposed filing, as
the case may be, and will not file or use any such document to which the Representative or Representative Counsel shall reasonably object.
3.2.3.
Exchange Act Registration. For a period of three (3) years from the date of this Agreement, the Company shall use its reasonable
best efforts to maintain the registration of the shares of Common Stock under the Exchange Act except in the case of a sale of all or
substantially all of the assets of the Company, a merger or reorganization of the Company with one or more other entities in which the
Company is not the surviving entity or any transaction or series of related transactions as a result of which any Person (together with
its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting control
of the Company. The Company shall not deregister the shares of Common Stock under the Exchange Act without the prior written consent
of the Representative except in the case of a sale of all or substantially all of the assets of the Company, a merger or reorganization
of the Company with one or more other entities in which the Company is not the surviving entity or any transaction or series of related
transactions as a result of which any Person (together with its Affiliates) acquires then outstanding securities of the Company representing
more than fifty percent (50%) of the voting control of the Company.
3.2.4.
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall
not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or
retained by the Company under Rule 433; provided, however, that the Representative shall be deemed to have consented to each Issuer
General Use Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule
433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each
such free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including
timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
existing at that subsequent time, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
3.2.5.
Testing-the-Waters Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there
occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative
and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such
untrue statement or omission.
3.3
Delivery to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make
available to the Representative and Representative Counsel, without charge, signed copies of the Registration Statement as originally
filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver
to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
3.4
Delivery to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to
each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule
172, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
3.5
Effectiveness and Events Requiring Notice to the Representative. The Company shall use its reasonable best efforts to cause the
Registration Statement to remain effective with a current prospectus for at least nine (9) months after the effective date of the Registration
Statement and through and including the expiration date of the Pre-Funded Warrants (or the date that all the Pre-Funded Warrants have
been exercised, if earlier), and shall notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness
of any amendment to the Registration Statement; (ii) of the issuance by the Commission of any stop order or of the initiation, or
the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings
for the suspension of the qualification of the Public 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 3.5 that, in the judgment
of the Company, makes any statement of a material fact made in the Registration Statement, the Pricing Disclosure Package or the Prospectus
untrue or that requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading,
or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification
at any time, the Company shall make every reasonable effort to obtain promptly the lifting of such order.
3.6
Review of Financial Statements. For a period of five (5) years after the date of this Agreement, the Company, at its expense,
shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial
statements for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7
Listing. The Company shall use its reasonable best efforts to maintain the listing of the shares of Common Stock (including the
Underlying Shares) on the Exchange for a period of three (3) years after the date of this Agreement except in the case of a sale of all
or substantially all of the assets of the Company, a merger or reorganization of the Company with one or more other entities in which
the Company is not the surviving entity or any transaction or series of related transactions as a result of which any Person (together
with its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting control
of the Company.
3.8
Financial Public Relations Firm. The Company has retained a financial public relations firm reasonably acceptable to the Representative
and the Company, which firm is experienced in assisting issuers in public offerings of securities and in their relations with their security
holders, and shall continue to retain such firm or another firm reasonably acceptable to the Representative for a period of not less
than two (2) years after the date hereof.
3.9
Reports to the Representative.
3.9.1.
Periodic Reports, etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish or make available
to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes
generally to holders of any class of its securities and also promptly furnish to the Representative: (i) a copy of each periodic report
the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every
press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy
of each Form 8-K prepared and filed by the Company; (iv) five copies of each registration statement filed by the Company under the Securities
Act; (v) a copy of each report or other communication furnished to stockholders; and (vi) such additional documents and information with
respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably
request; provided the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which
is reasonably acceptable to the Representative and Representative Counsel in connection with the Representative’s receipt of such
information. Documents filed with the Commission pursuant to its EDGAR system shall be deemed to have been delivered to the Representative
pursuant to this Section 3.9.1.
3.10
Payment of Expenses.
3.10.1.
General Expenses Related to the Offering. The Company hereby agrees to pay on the Closing Date, to the extent not paid at the
Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited
to: (i) all filing fees and communication expenses relating to the registration of the Public Securities to be sold in the Offering with
the Commission; (ii) all filing fees and expenses associated with the review of the Offering by FINRA; (iii) all fees and expenses relating
to the listing of the Common Stock on The Nasdaq Capital Market, The Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE
or the NYSE American and on such other stock exchanges as the Company and the Representative together determine, including any fees charged
by The Depository Trust Company (DTC) for new securities; (iv) all fees, expenses and disbursements relating to the background checks
of the Company’s officers, directors and entities in an amount not to exceed $15,000 in the aggregate; (v) all fees, expenses and
disbursements relating to the registration or qualification of such Public Securities under the “blue sky” securities laws
of such states, if applicable, and other jurisdictions as the Representative may reasonably designate; (vi) all fees, expenses and disbursements
relating to the registration, qualification or exemption of the Public Securities under the securities laws of such foreign jurisdictions
as the Representative may reasonably designate; (vi) the costs of all mailing and printing of the underwriting documents (including,
without limitation, the Underwriting Agreement, any Blue Sky Surveys, if appropriate, any agreement among underwriters, selected dealers’
agreement, underwriters’ questionnaire and power of attorney), Registration Statements, Prospectuses, the Pre-Funded Warrants and
all amendments, supplements and exhibits thereto and as many Preliminary Prospectuses and final Prospectuses as the Representative may
reasonably deem necessary; (viii) the costs and expenses of a public relations firm; (ix) the costs of preparing, printing and delivering
certificates representing the Shares; (x) fees and expenses of the transfer agent for the Public Securities; (xi) stock transfer and/or
stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (xii) the fees and expenses of the
Company’ accountants; (xiv) the fees and expenses of the Company’s legal counsel and other agents and representatives; (xv)
the fees and expenses of Representative Counsel not to exceed $125,000; (xvi) the $29,500 cost associated with the use of Ipreo’s
book-building, prospectus tracking and compliance software for the Offering; (xvii) $10,000 for data services and communications expenses;
(xviii) up to $10,000 of the Representative’s actual accountable “road show” expenses; and (xix) up to $30,000 of the
Representative’s market making and trading, and clearing firm settlement expenses for the offering; provided, however, that the
fees set forth under clauses (iv), (xv), (xvi), (xvii), (xviii) and (xix) in this Section 3.10.1, collectively shall not exceed $175,000.
The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, the expenses set forth
herein (less the Advance) to be paid by the Company to the Underwriters; provided however, that in the event that the Offering is terminated,
the Company agrees to reimburse the Underwriters pursuant to Section 8.3(c).
3.10.2.
Non-accountable Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.10.1, on
the Closing Date it shall pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable
expense allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Public Securities, provided,
however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 8.3
hereof.
3.11
Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent
with the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.12
Delivery of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon
as practicable, but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement,
an earnings statement (which need not be certified by independent registered public accounting firm unless required by the Securities
Act or the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities Act)
covering a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13
Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent
of the Representative) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under Regulation M of 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 Public Securities.
3.14
Internal Controls. The Company shall use its reasonable best efforts to continue to maintain a system of internal accounting controls
sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance
with GAAP and to maintain accountability for assets; (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 existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
3.15
Accountants. As of the date of this Agreement, the Company shall continue to retain a nationally recognized independent registered
public accounting firm for a period of at least three (3) years after the date of this Agreement. The Representative acknowledges that
the Auditor is acceptable to the Representative.
3.16
FINRA. The Company shall advise the Representative (who shall make an appropriate filing with FINRA) and Representative Counsel
if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the
Company's securities or (iii) any beneficial owner of the Company's unregistered equity securities which were acquired during the 180
days immediately preceding the date hereof is or becomes an affiliate or associated person of a FINRA member participating in the Offering
(as determined in accordance with the rules and regulations of FINRA).
3.17
No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary
capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other
transactions contemplated by this Agreement.
3.18
Restriction on Continuous Offerings. Notwithstanding the restrictions contained in Section 3.18, the Company, on behalf of itself
and any successor entity, agrees that, without the prior written consent of the Representative, it will not, for a period of ninety (90)
days after the date of this Agreement, directly or indirectly in any “at-the-market” or continuous equity transaction, offer
to sell, sell, contract to sell, grant any option to sell or otherwise dispose of shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of capital stock of the Company.
3.19
Company Lock-Up Agreements. The Company, on behalf of itself and any successor entity, agrees that, without the prior written
consent of the Representative, it will not for a period of ninety (90) days after the date of this Agreement (the “Lock-Up
Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares
of capital stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering
of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company other than an amendment to the Registration Statement; or (iii) complete any offering of debt securities of the
Company, other than entering into a line of credit with a traditional bank or (iv) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any such transaction
described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of shares of capital stock of the Company or such other
securities, in cash or otherwise.
The
restrictions contained in this Section 3.19 shall not apply to (i) the shares of Common Stock to be sold hereunder or the issuance of
shares of Common Stock upon the exercise of the Pre-Funded Warrants, (ii) the issuance by the Company of shares of Common Stock upon
the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof, which is disclosed in the Registration
Statement, Pricing Disclosure Package and Prospectus, provided that such options, warrants, and 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 or to extend the term of such securities other than, (iii) the issuance by the Company of stock options, shares
of capital stock of the Company or other awards under any equity compensation plan of the Company, provided that in each of (ii) and
(iii) above, the underlying shares shall be restricted from sale during the entire Lock-Up Period or (iv) 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 3.19 herein, and provided that
any such issuance shall only be to a Person (or to the equity holders 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.
3.20
Release of D&O Lock-up Period. If the Representative, in its sole discretion, agrees to release or waive the restrictions
set forth in the Lock-Up Agreements described in Section 2.26 hereof for an officer or director of the Company and provide the Company
with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver, the
Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through
a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.21
Blue Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify
the Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.22
Reporting Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the
exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed
with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally,
the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities
Act Regulations.
3.23
Press Releases. Prior to the Closing Date, the Company shall not issue any press release or other communication directly or indirectly
or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business
prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices
of the Company and of which the Representative is notified), without the prior written consent of the Representative, which consent shall
not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to the Representative, such
press release or communication is required by law.
3.24
Sarbanes Oxley. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
shall at all times comply with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
3.25
Reservation of Common Stock. As of the date hereof, the Company has irrevocably reserved, and the Company shall continue to reserve
and keep available at all times, free of pre-emptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue the Underlying Shares.
4.
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities
as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date
hereof and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following
conditions:
4.1
Regulatory Matters.
4.1.1.
Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than
5:00 p.m., Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at
each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to
the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission
for additional information. The Prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner
and within the time frame required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information
shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
4.1.2.
FINRA Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Underwriters as described in the Registration Statement, if required.
4.1.3.
Exchange Stock Market Clearance. On the Closing Date, the shares of Common Stock, including the Firm Shares and the Underlying
Shares issuable upon exercise of the Pre-Funded Warrants, shall have been approved for listing on the Exchange, subject only to official
notice of issuance. On the first Option Closing Date (if any), the Company’s shares of Common Stock, including the Option Shares,
shall have been approved for listing on the Exchange, subject only to official notice of issuance.
4.2
Company Counsel Matters.
4.2.1.
Closing Date Opinion of Counsel. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have
received the favorable opinion and negative assurance letter of Blank Rome LLP, counsel to the Company, dated as of the Closing Date,
and addressed to the Representative, substantially in form and substance reasonably acceptable to the Representative.
4.2.2.
Reliance. In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than
the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative)
of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact,
to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of
various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and the Subsidiaries,
provided that copies of any such statements or certificates shall be delivered to Representative Counsel if requested.
4.3
Comfort Letters.
4.3.1.
Cold Comfort Letter. At the time this Agreement is executed, the Representative shall have received a cold/long form comfort letter
containing statements and information of the type customarily included in accountants’ comfort letters with respect to the financial
statements and certain financial information contained or incorporated or deemed incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, addressed to the Representative and in form and substance satisfactory in all respects
to the Representative, dated as of the date of this Agreement and to not have the Auditor cutoff date more than one (1) Business Day
prior to the date of this Agreement.
4.3.2.
Bring-down Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received
from the Auditor a letter, dated as of the Closing Date, to the effect that the Auditor reaffirms the statements made in the letter furnished
pursuant to Section 4.3.1, except that the specified date referred to shall be a date not more than one (1) Business Day prior to the
Closing Date.
4.4
Officers’ Certificates.
4.4.1.
Officers’ Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date and
any Option Closing Date (if such date is other than the Closing Date) of its Chief Executive Officer and its Chief Financial Officer
stating that (i) such officers have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing
Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time
and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement
of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading, and the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date
if such date is other than the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing Date, and the Prospectus
and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if
such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii)
since the Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement,
the Pricing Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing
Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and
(iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference
in the Pricing Disclosure Package, any material adverse change in the financial position or results of operations of the Company and
its Subsidiaries taken as a whole, nor any change or development that, singularly or in the aggregate, would involve a material adverse
change or a prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business,
assets or prospects of the Company and its Subsidiaries taken as a whole, except as set forth in the Prospectus.
4.4.2.
Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have
received a certificate of the Company of the Secretary of the Company, or such corporate officer equivalent, dated as of the Closing
Date or the Option Closing Date, as the case may be, respectively, certifying: (i) that each of the Articles and Bylaws (and the
charter, by-laws or other organizational documents of any Subsidiary) is true and complete, has not been modified and is in full force
and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect
and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the
Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be
attached to such certificate.
4.5
Chief Financial Officer’s Certificate. At the time this Agreement is executed and at each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of the Chief Financial Officer of the Company, dated as of
such date, with respect to the accuracy of certain information contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, in a form reasonably acceptable to the Representative.
4.6
No Material Changes. Prior to and on each of the Closing Date and the Option Closing Date, if any: (i) there shall have been
no Material Adverse Change or development involving a prospective Material Adverse Change and no change in the capital stock or debt
of the Company from the latest dates as of which such conditions are set forth in or incorporated by reference into the Registration
Statement, the Pricing Disclosure Package and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have
been pending or threatened against the Company or any Insider before or by any court or federal or state commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened
by the Commission; (iv) no action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted
or issued by any Governmental Entity which would prevent the issuance or sale of the Public Securities or materially and adversely affect
or potentially materially and adversely affect the business or operations of the Company; (v) no injunction, restraining order or order
of any other nature by any federal, state or foreign court of competent jurisdiction shall have been issued which would prevent the issuance
or sale of the Public Securities or materially and adversely affect or potentially materially and adversely affect the business or operations
of the Company; and (vi) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements
thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities
Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations,
and neither the Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
4.7
Corporate Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each
of this Agreement, the Public Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus and all other
legal matters relating to this Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all
material respects to Representative Counsel, and the Company shall have furnished to Representative Counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
4.8
Delivery of Agreements.
4.8.1.
Lock-Up Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representative executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.8.2.
Pre-Funded Warrants. On or before each of the Closing Date and the Option Closing Date, if any, the Company shall have delivered
to the Representative executed copies of the Firm Pre-Funded Warrants and the Option Pre-Funded Warrants, as the case may be.
4.9
Additional Documents. At the Closing Date and at each Option Closing Date (if any), the Representative Counsel shall have been
furnished with such documents and opinions as they may require for the purpose of enabling Representative Counsel to deliver an opinion
to the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities
as herein contemplated shall be satisfactory in form and substance to the Representative and Representative Counsel.
5.
Indemnification.
5.1
Indemnification of the Underwriters.
5.1.1.
General. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates
and each of its and their respective directors, officers, members, employees, representatives, partners, stockholders, affiliates, counsel,
and agents and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (collectively the “Underwriter Indemnified Parties,”
and each an “Underwriter Indemnified Party”), against any and all loss, liability,
claim, damage and expense whatsoever (including but not limited to any and all actual and documented legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising
out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties
and any third party, or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any
other statute or at common law or otherwise or under the laws of foreign countries (a “Claim”),
arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement,
the Pricing Disclosure Package, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or in any Written Testing-the-Waters
Communication (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors by,
or with the approval of, the Company in connection with the marketing of the Offering, including any “road show” or investor
presentations made to investors by the Company (whether in person or electronically); (iii) any application or other document or written
communication (in this Section 5, collectively called “application”) executed by the Company or based upon written information
furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof or filed with
the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the omission or
alleged omission therefrom of 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, unless such statement or omission was made in reliance upon, and in
conformity with, the Underwriters’ Information; or (iv) otherwise arising in connection with or allegedly in connection with the
Offering. The Company also agrees that it will reimburse each Underwriter Indemnified Party for all fees and expenses (including but
not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties
and the Company or between any of the Underwriter Indemnified Parties and any third party, or otherwise) (collectively, the “Expenses”),
and further agrees wherever and whenever possible to advance payment of Expenses as they are incurred by an Underwriter Indemnified Party
in investigating, preparing, pursuing or defending any Claim.
5.1.2.
Procedure. If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against
the Company pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the
approval of such Underwriter Indemnified Party) and payment of actual expenses if an Underwriter Indemnified Party requests that the
Company do so. Such Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company, and shall be advanced by the Company; provided however, that the
Company shall not be obligated to bear the reasonable fees and expenses of more than one firm of attorneys selected by the Underwriter
Indemnified Party (in addition to local counsel).. The Company
shall not be liable for any settlement of any action effected without its consent (which shall not be unreasonably withheld). In addition,
the Company shall not, without the prior written consent of the Underwriters, 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 advancement, reimbursement, indemnification or
contribution may be sought hereunder (whether or not such Underwriter Indemnified Party is a party thereto) unless such settlement, compromise,
consent or termination (i) includes an unconditional release of each Underwriter Indemnified Party, acceptable to such Underwriter Indemnified
Party, from all liabilities, expenses and claims arising out of such action for which indemnification or contribution may be sought and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Underwriter
Indemnified Party.
5.2
Indemnification of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company,
its directors, its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions
made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or Prospectus or any amendment or supplement
thereto or in any application, in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action
shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement,
the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity
may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each
other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The
Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or any
of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, in connection with the issuance and sale of the Public Securities or in connection with the Registration
Statement, the Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3
Contribution.
5.3.1.
Contribution Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, from the Offering of the Public Securities, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall
be deemed to be in the same proportion as the total net proceeds from the Offering of the Public Securities purchased under this Agreement
(before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand,
and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Common Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the Offering of
the Public Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5.3.2.
Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice
of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of the commencement thereof, but the failure
to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or
its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate therein
with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
on account of any settlement of any claim, action or proceeding affected by such party seeking contribution without the written consent
of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted
by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations
to contribute pursuant to this Section 5.3 are several and not joint.
6.
Default by an Underwriter.
6.1
Default Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters shall default in its or their obligations
to purchase the Firm Shares or the Option Shares, if the Over-allotment Option is exercised hereunder, and if the number of the Firm
Shares or Option Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Shares
or Option Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares or Option Shares to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2
Default Exceeding 10% of Firm Shares or Option Shares. In the event that the default addressed in Section 6.1 relates to more
than 10% of the Firm Shares or Option Shares, you may in your discretion arrange for yourself or for another party or parties to purchase
such Firm Shares or Option Shares to which such default relates on the terms contained herein. If, within one (1) Business Day after
such default relating to more than 10% of the Firm Shares or Option Shares, you do not arrange for the purchase of such Firm Shares or
Option Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or
parties satisfactory to you to purchase said Firm Shares or Option Shares on such terms. In the event that neither you nor the Company
arrange for the purchase of the Firm Shares or Option Shares to which a default relates as provided in this Section 6, this Agreement
will automatically be terminated by you or the Company without liability on the part of the Company (except as provided in Sections 3.9
and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided, however, that if such default occurs with
respect to the Option Shares, this Agreement will not terminate as to the Firm Shares; and provided, further, that nothing herein shall
relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to the Company for damages occasioned by its
default hereunder.
6.3
Postponement of Closing Date. In the event that the Firm Shares or Option Shares to which the default relates are to be purchased
by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the
right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days,
in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package or the
Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement,
the Pricing Disclosure Package or the Prospectus that in the opinion of Representative Counsel may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it
had originally been a party to this Agreement with respect to such shares of Common Stock.
7.
Additional Covenants.
7.1
Board Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as
members of the Board of Directors and the overall composition of the Board comply with the Sarbanes-Oxley Act, with the Exchange Act
and with the listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company seeks
to have its Public Securities listed on another exchange or quoted on an automated quotation system, and (ii) if applicable, at
least one member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,” as
such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2
Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity,
without the Representative’s prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st)
Business Day following the forty-fifth (45th) day after the Closing Date, other than normal and customary releases issued
in the ordinary course of the Company’s business.
7.3
Right of First Refusal. Provided that the Firm Securities are sold in accordance with the terms of this Agreement, and the gross
proceeds to the Company from the Offering together with the proceeds from any equity line of credit, convertible debt and/or equity financing
arranged by the Representative subsequent to May 31, 2024 is at least $12.5 million in the aggregate at the time of the closing of the
Offering and the shares of Common Stock are listed and traded on the NYSE American or The Nasdaq Stock Market LLC at the time of such
closing, the Representative shall have an irrevocable right of first refusal (the “Right
of First Refusal”), for a period of eight (8) months after the date the Offering is completed,
to act as sole and exclusive investment banker, sole and exclusive book-runner, sole and exclusive financial advisor, sole and exclusive
underwriter and/or sole and exclusive placement agent, at the Representative’s sole and exclusive discretion, for each and every
future public and private equity and debt offering, including all equity linked financings but excluding equipment financings and bank
lines of credit (each, a “Subject Transaction”), during such eight (8) month period,
of the Company, or any successor to or subsidiary of the Company, on terms and conditions customary to the Representative for such Subject
Transactions. For the avoidance of any doubt, the Company shall not retain, engage or solicit any additional investment banker, book-runner,
financial advisor, underwriter and/or placement agent in a Subject Transaction without the express written consent of the Representative.
The
Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing
written notice thereof to the Representative in accordance with the terms of this Agreement. If the Representative fails to exercise
its Right of First Refusal with respect to any Subject Transaction within ten (10) Business Days after the receipt of such notice, then
the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its
sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such
election by the Representative shall not adversely affect its Right of First Refusal with respect to any other Subject Transaction during
the eight (8) month period agreed to above.
8.
Effective Date of this Agreement and Termination Thereof.
8.1
Effective Date. This Agreement shall become effective when both the Company and the Representative have executed the same and
delivered counterparts of such signatures to the other party.
8.2
Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if
any domestic or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq Stock
Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv) if
a banking moratorium has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading
has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained
a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in your opinion, make it inadvisable to proceed with the delivery of the Securities; or
(vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder; or (viii) if the
Representative shall have become aware after the date hereof of such a Material Adverse Change, or such adverse material change in general
market conditions as in the Representative’s judgment would make it impracticable to proceed with the offering, sale and/or delivery
of the Securities or to enforce contracts made by the Underwriters for the sale of the Securities.
8.3
Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant
to Section 6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified
herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual
and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the fees and disbursements
of Representative Counsel) up to a maximum of $50,000 and upon demand the Company shall pay the full amount thereof to the Representative
on behalf of the Underwriters; provided, however, that such expense cap in no way limits or impairs
the indemnification and contribution provisions of this Agreement. Notwithstanding the foregoing, the Representative hereby agrees
that the Underwriters are not entitled to receive payment under Section 8.3 of the Underwriting Agreement executed on August 6, 2024.
8.4
Survival of Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any
termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in
full force and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this
Agreement or any part hereof.
8.5
Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Securities.
9.
Miscellaneous.
9.1
Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed
(registered or certified mail, return receipt requested), personally delivered or sent by e-mail and confirmed and shall be deemed given
when so delivered or e-mailed and confirmed or if mailed, two (2) days after such mailing.
If to the Representative:
ThinkEquity LLC
17 State Street, 41st
Floor
New York, New York 10004
Attention: Head of Investment Banking
E-mail: Notices@think-equity.com
with a copy (which shall not
constitute notice) to:
Sullivan & Worcester LLP
1251 Avenue of the Americas
New York, New York 10020
Attention: Oded Har-Even, Esq.
E-mail: ohareven@sullivanlaw.com
If to the Company:
Scorpius Holdings, Inc.
627 Davis Drive, Suite 300
Morrisville, North Carolina 27560
Attention: Jeffrey Wolf
E-mail: ir@scorpiusbiologics.com
with a copy (which shall not
constitute notice) to:
Blank Rome, LLP
1271 Avenue of the Americas
New York, New York 10020
Attention: Leslie Marlow, Esq.
E-mail: Leslie.Marlow@BlankRome.com
9.2
Research Analyst Independence. The Company acknowledges that each Underwriter’s research analysts and research departments
are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and
that such Underwriter’s research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company and/or the Offering that differ from the views of their investment banking division. The Company
acknowledges that each Underwriter is a full service securities firm and as such from time to time, subject to applicable securities
laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the Company; provided, however, that nothing in this Section 9.2 shall relieve the Underwriter of any
responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or
regulations.
9.3
Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this Agreement.
9.4
Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.5
Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection
with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. Notwithstanding
anything to the contrary set forth herein, it is understood and agreed by the parties hereto that all other terms and conditions of that
certain engagement letter between the Company and ThinkEquity LLC dated July 18, 2024, shall remain in full force and effect.
9.6
Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters,
the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal
representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns”
shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.7
Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in
the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding
or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the
preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.8
Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the
same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall
constitute valid and sufficient delivery thereof.
9.9
Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not
be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision
hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance
or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature
Page Follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
SCORPIUS HOLDINGS, INC.
By: /s/ Jeffrey Wolf
Name: Jeffrey Wolf
Title: Chief Executive Officer
Confirmed as of the date
first written above mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule 1 hereto:
THINKEQUITY LLC
By: /s/ Eric Lord
Name: Eric Lord
Title: Head of Investment Banking
SCHEDULE
1
Underwriter |
Total Number of Firm Shares to
be Purchased |
Total Number of Firm Pre-Funded
Warrants to be Purchased |
Total Number of Option Shares
and/or Pre-Funded Warrants to be Purchased |
ThinkEquity LLC |
2,428,000 |
10,072,000 |
1,875,000 |
TOTAL |
2,428,000 |
10,072,000 |
1,875,000 |
Sch. 1-1
SCHEDULE
2-A
Pricing
Information
Number of Firm Shares: 2,428,000
Total Number of Firm Pre-Funded Warrants:
10,072,000
Number of Option Shares and/or Pre-Funded
Warrants: 1,875,000
Public Offering Price per Share:
$1.00
Public Offering Price per Pre-Funded
Warrant: $0.9998
Underwriting Discount per Share:
$0.07
Underwriting Discount per Pre-Funded
Warrant: $0.07
Proceeds to Company per Share (before
expenses): $0.93
Proceeds to Company per Pre-Funded
Warrant (before expenses): $0.9298
Sch. 2-1
SCHEDULE 2-B
Issuer General Use
Free Writing Prospectuses
Issuer Free Writing Prospectus dated August
6, 2024.
Sch. 2-2
SCHEDULE 2-C
Written Testing-the-Waters
Communications
None.
Sch. 2-3
SCHEDULE 3
List of Lock-Up Parties
Officers and Directors
and Affiliates:
Scd. 3-1
EXHIBIT
A
Form of Lock-Up Agreement
,
2024
ThinkEquity LLC
17 State Street, 41st Floor
New York, NY 10004
As Representative of
the several Underwriters named on Schedule 1 to the Underwriting Agreement referenced below
Ladies and Gentlemen:
The
undersigned understands that ThinkEquity LLC (the “Representative”), proposes to enter into an Underwriting Agreement
(the “Underwriting Agreement”) with Scorpius Holdings, Inc., a corporation formed under the laws of the State of Delaware
(the “Company”), providing for the public offering (the “Public Offering”) of securities, including
shares of common stock, par value $0.0002 per share, of the Company (the “Common Stock”).
To
induce the Representative to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without
the prior written consent of the Representative, the undersigned will not, during the period commencing on the date hereof and ending
ninety (90) days after the date of the Underwriting Agreement (the “Lock-Up Period”), (1) offer, pledge, sell, contract
to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for shares of Common Stock, whether now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”);
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up
Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities;
or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge
or other arrangement relating to any Lock-Up Securities.
Notwithstanding
the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent
of the Representative in connection with (a) transactions relating to Lock-Up Securities acquired in the Public Offering or in open market
transactions after the completion of the Public Offering; provided that no filing pursuant to Section 13 or Section 16(a)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required
or shall be voluntarily made in connection with subsequent sales of Lock-Up Securities acquired in such transactions; (b) transfers of
Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of the undersigned
or a family member (for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or
adoption, not more remote than first cousin); (c) transfers of Lock-Up Securities to a charity or educational institution; (d) if the
undersigned is a corporation, partnership, limited liability company or other business entity, (i) any transfers of Lock-Up Securities
to another corporation, partnership or other business entity that controls, is controlled by or is under common control with the undersigned
or (ii) distributions of Lock-Up Securities to members, partners, stockholders, subsidiaries or affiliates (as defined in Rule 405 promulgated
under the Securities Act of 1933, as amended) of the undersigned; (e) if the undersigned is a trust, to a trustee or beneficiary of the
trust; provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) (d) or (e), (i) any such transfer
shall not involve a disposition for value, (ii) each transferee shall sign and deliver to the Representative a lock-up agreement substantially
in the form of this lock-up agreement and (iii) no filing pursuant to Section 13 or Section 16(a) of the Exchange Act or other public
announcement shall be required or shall be voluntarily made; (f) the receipt by the undersigned from the Company of shares of Common
Stock upon the vesting of restricted stock awards or stock units or upon the exercise of options to purchase the Company’s shares
of Common Stock issued under an equity incentive plan of the Company or an employment arrangement described in the Preliminary Pricing
Prospectus (as defined in the Underwriting Agreement) (the “Plan Shares”) or the transfer of shares of Common Stock
or any securities convertible into shares of Common Stock to the Company upon a vesting event of the Company’s securities or upon
the exercise of options to purchase the Company’s securities, in each case on a “cashless” or “net exercise”
basis or to cover tax obligations of the undersigned in connection with such vesting or exercise, but only to the extent such right expires
during the Lock-up Period, provided that no filing pursuant to Section 13 or Section 16(a) of the Exchange Act or other public
announcement shall be required or shall be voluntarily made within ninety (90) days after the date of the Underwriting Agreement, and
after such ninety (90) day period, if the undersigned is required to file a report pursuant to Section 13 or Section 16(a) of the Exchange
Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the undersigned shall include
a statement in such schedule or report to the effect that the purpose of such transfer was to cover tax withholding obligations of the
undersigned in connection with such vesting or exercise and, provided further, that the Plan Shares shall be subject to the terms
of this lock-up agreement; (g) the transfer of Lock-Up Securities pursuant to agreements described in the Preliminary Pricing Prospectus
under which the Company has the option to repurchase such securities or a right of first refusal with respect to the transfer of such
securities, provided that if the undersigned is required to file a report pursuant to Section 13 or Section 16(a) of the Exchange
Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the undersigned shall include
a statement in such schedule or report describing the purpose of the transaction; (h) the establishment of a trading plan pursuant to
Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities, provided that (i) such plan does not provide for the
transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act,
if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan,
such public announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under such
plan during the Lock-Up Period; (i) the transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified
domestic order or in connection with a divorce settlement, provided that the transferee agrees to sign and deliver a lock-up agreement
substantially in the form of this lock-up agreement for the balance of the Lock-Up Period, and provided further, that any filing
under Section 13 or Section 16(a) of the Exchange Act that is required to be made during the Lock-Up Period as a result of such transfer
shall include a statement that such transfer has occurred by operation of law; and (j) the transfer of Lock-Up Securities pursuant to
a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of shares of Common Stock
involving a change of control (as defined below) of the Company after the closing of the Public Offering and approved by the Company’s
board of directors; provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed,
the Lock-Up Securities owned by the undersigned shall remain subject to the restrictions contained in this lock-up agreement. For purposes
of clause (j) above, “change of control” shall mean the consummation of any bona fide third party tender offer, merger, amalgamation,
consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the
Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority
of total voting power of the voting stock of the Company. The undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance
with this lock-up agreement.
Ex. A-1
If
(i) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating
to the Company occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results
or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up
Period, the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning
on the issuance of the earnings release or the occurrence of such material news or material event, as applicable, unless the Representative
waives, in writing, such extension.
The
undersigned agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up
agreement during the period from the date hereof to and including the 34th day following the expiration of the Lock-Up Period,
the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless it
has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the previous paragraph)
has expired.
If
the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally
applicable to any issuer-directed or “friends and family” securities that the undersigned may purchase in the Public Offering;
(ii) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release
or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release
through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver
granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication
date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit
a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described
in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer.
The
undersigned understands that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation
of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
The
undersigned understands that, if the Underwriting Agreement is not executed by [_], 2024, or if the Underwriting Agreement (other than
the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of shares of Common
Stock to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect.
Whether
or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
Very truly yours,
____________________________________
(Name - Please
Print)
____________________________________
(Signature)
____________________________________
(Name of Signatory,
in the case of entities - Please Print)
____________________________________
(Title of Signatory,
in the case of entities - Please Print)
Address:
__________________________________
___________________________________
___________________________________
Ex. A-2
EXHIBIT
B
Form of Press
Release
[Date]
Scorpius Holdings,
Inc. (the “Company”) announced today that ThinkEquity LLC, acting as representative of the underwriters in the Company’s
recent public offering of _______ shares of the Company’s common stock, is [waiving] [releasing] a lock-up restriction with
respect to _________ shares of the Company’s common stock held by [certain officers or directors] [an officer or director]
of the Company. The [waiver] [release] will take effect on _________, 2024, and the shares may be sold on or after such date.
This press
release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited,
and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the Securities
Act of 1933, as amended.
Ex. B-1
Exhibit 4.1
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
SCORPIUS HOLDINGS, INC.
|
|
Warrant Shares: ________ |
Initial Exercise Date: August 19, 2024
Issuance Date: August 19, 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 Issuance Date”) until this Warrant is exercised in full (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Scorpius Holdings, Inc., a Delaware corporation (the “Company”),
up to ______ shares of common stock, par value $0.0002 per share (the “Common Stock”), of the Company (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one Warrant Share under this Warrant shall be equal
to the Exercise Price, as defined in Section 2(b).
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.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0002 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.
“Liens” means
a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“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.
“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.
“Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-280887).
“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.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“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
OTCQB, OTCQX or Pink Open Market operated by OTC Markets Group, 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).
“Transfer Agent”
means Continental Stock Transfer & Trust Company, 1 State Street, 30th Floor,
New York, New York 1000, telephone number of (212) 509-4000 and any successor transfer agent of the Company.
“Warrants”
means this Warrant and other Pre-Funded 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 Issuance Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A(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 to the Company the aggregate Exercise Price for the Warrant 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 form 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 in connection with such partial exercise. 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) Trading Day of receipt of such notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00pm (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, or cause to be delivered, the Warrant Shares subject to such Notice(s) by 4:00 pm (New York City time) on the Initial Exercise Date, and the Initial Exercise Date shall be the Warrant Share Delivery Date (as defined below) for purposes hereunder, provided that payment of the aggregated Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. 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 aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0002 per Warrant Share, was pre-funded to the
Company on or prior to the Initial Issuance Date and, consequently, no additional consideration (other than the nominal exercise price
of $0.0002 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 Warrant Share under this Warrant shall be $0.0002, 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 for the deemed surrender of the Warrant in
whole or in part 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) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise
or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. 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. |
The
issue price for each such Warrant Share to be issued pursuant to the cashless exercise of a Warrant will be equal to (B), as defined above,
and the total issue price for the aggregate number of Warrant Shares issued pursuant to the cashless exercise of a Warrant will be deemed
paid and satisfied in full by the deemed surrender to the Company of the portion of such Warrant being exercised in accordance with this
Section 1(c). Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments or net cash
settlement to the Holder in lieu of delivery of the Warrant Shares. 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).
“Bid Price”
means, for any security as of the particular time of determination, the bid price for such security on the Trading Market as reported
by Bloomberg as of such time of determination, or, if the Trading Market is not the principal securities exchange or trading market for
such security, the bid price of such security on the principal securities exchange or trading market where such security is listed or
traded as reported by Bloomberg as of such time of determination, or if the foregoing does not apply, the bid price of such security in
the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg as of such time of determination,
or, if no bid price is reported for such security by Bloomberg as of such time of determination, the average of the bid prices of any
market makers for such security as reported on the Pink Open Market as of such time of determination. If the Bid Price cannot be calculated
for a security as of the particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time
of determination shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are
unable to agree upon the fair market value of such security, then such fair market value shall be determined pursuant to the provisions
set forth in clause (d) of the definition of VWAP. All such determinations to be appropriately adjusted for any stock dividend, share
split, share consolidation, reclassification or other similar transaction during the applicable calculation period.
“Closing Sale
Price” means, for any security as of any date, the last closing trade price for such security on the Trading Market, as reported
by Bloomberg, or, if the Trading Market begins to operate on an extended hours basis and does not designate the closing trade price, then
the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Trading Market is not
the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last
trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg,
or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security
as reported on the in the OTC Link or on the Pink Open Market. If the Closing Sale Price cannot be calculated for a security on a particular
date on any of the foregoing bases, Closing Sale Price of such security on such date shall be the fair market value as mutually determined
by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such
fair market value shall be determined pursuant to the provisions set forth in clause (d) of the definition of VWAP. All such determinations
to be appropriately adjusted for any stock dividend, share split, share consolidation, reclassification or other similar transaction during
the applicable calculation period.
“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 for trading on a Trading Market other than the OTCQB, OTCQX or Pink Open Market operated by OTC Markets Group, 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 the Common Stock is then quoted for trading on the OTCQB or OTCQX operated by OTC Markets Group, 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 then quoted for trading on the Pink Open Market operated by OTC Markets Group (or a similar organization or agency succeeding to its
functions of reporting prices),the most recent bid price per share of Common Stock reported on the Pink Open Market, 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.
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 (the “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 the 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 to said Holder or the Holder rescinds such exercise. The Company agrees
to maintain a transfer agent that is a participant in the Fast Automated Securities Transfer or 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, 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 Issue Date, which may be delivered at any time after the time of execution of the Underwriting
Agreement, dated August 16, 2024 between the Company and ThinkEquity LLC, the Company agrees to deliver the Warrant Shares subject to
such notice(s) by 4:00 p.m. (New York City time) on the Issue 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 by (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 shares of Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants 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. The Issuance and delivery 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 as Exhibit B 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,
and if any portion of this Warrant remains unexercised, a new Warrant in the form hereof shall be delivered by the Company to the assignee.
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 shall 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 (i) the Holder’s Affiliates, (ii) any other Persons
acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Person whose beneficial ownership
of shares of Common Stock would or could be aggregated with the Holder’s for the purpose of Section 13(d) (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 Warrant Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall
exclude the number of Warrant Share which would be issuable upon (i) exercise of the remaining, non-exercised 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
non-converted 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, and the Company shall have no obligation to verify of confirm the accuracy of such determination. 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 (1) 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
the Warrant Shares 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 Common Stock outstanding immediately after giving effect to the issuance of Warrant Shares 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 Warrant Shares 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 or consolidation) 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 while this Warrant is outstanding the Company
grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata all
of to the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the
Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
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).
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 all of the holders of Common Stock, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, shares 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,
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 amalgamation or consolidation of the Company with or into another Person, and the Company is not the surviving entity (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
50% or more of the outstanding shares of Common Stock or 50% or more 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 shares of Common Stock or any compulsory share exchange pursuant to which shares of Common Stock are effectively converted into or
exchanged for other securities, cash or property (other than a stock split), or (v) the Company, directly or indirectly, in one or more
related transactions consummates a 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 more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or
other Persons making or party to, or associated or affiliated with the other Persons making or party to, such share purchase agreement
or other business combination) or more of the outstanding Common Stock or 50% or more 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 or
is otherwise the continuing 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 shares 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 and the other Transaction Documents in accordance with the provisions of this Section
3(d) pursuant to written agreements in form and substance reasonable to the Holder 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 or other
securities 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 or other securities (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares or securities, such number of
shares or securities 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 succeed to, and be substituted for (so that from and after
the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to
the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under
this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share of Common Stock, 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 shares of Common Stock, (C) the Company shall
authorize the granting to all holders of the shares of Common Stock rights or warrants to subscribe for or purchase any shares of the
Company 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, amalgamation or arrangement to which the Company 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, amalgamation, arrangement, 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,
amalgamation, arrangement 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 its subsidiaries
(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 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 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.
Section 5. Miscellaneous.
a) No Rights as Stockholder
Until Exercise. 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, including if the Company is for any reason unable to issue and deliver Warrant
Shares upon exercise of this Warrant as required pursuant to the terms thereof, 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 in no event include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company shall 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 Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued shares of 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 shall take
all such reasonable action as may be necessary to assure that such Warrant Shares may be issued and delivered, 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
or quoted for trading. 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 non-assessable 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, amalgamation, arrangement 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 shall (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 non-assessable 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 conflict of laws thereof.
Each party agrees that all legal Proceedings concerning the interpretation, enforcement and defense of this Warrant shall be commenced
in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts 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 provision hereunder), 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 such New York Courts, or such New York Courts are improper or inconvenient venue for
such Proceeding. If any party shall commence an action or Proceeding to enforce any provisions of this Warrant, then the prevailing party
in such action or Proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred
in 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 or foreign 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. No provision of this Warrant shall be constructed
as a waiver by the holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the
Commission hereunder. 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 facsimile or by e-mail, or sent by a nationally recognized overnight courier
service, addressed to the Company, at 627 Davis Drive, Suite 300, Morrisville, North Carolina 27560, Attention: William Ostrander, Chief
Financial Officer, email address: wostrander@nighthawkbio.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 facsimile, email or sent by a nationally recognized
overnight courier service addressed to each Holder at the facsimile number, email 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 facsimile at the facsimile number or 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 date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number or 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.
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, 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) No Expense Reimbursement.
The Holder shall in no way be required the pay, or to reimburse the Company for, any fees or expenses of the Company’s transfer
agent in connection with the issuance or holding or sale of the Common Stock, Warrant and/or Warrant Shares. The Company shall solely
be responsible for any and all such fees and expenses.
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.
********************
(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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SCORPIUS HOLDINGS, INC. |
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NOTICE OF EXERCISE
To: |
SCORPIUS HOLDINGS,
INC.
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(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
☐
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]
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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
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Dated: _____________________ __, ______ |
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Holder’s Signature: |
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Exhibit 99.1
Scorpius Holdings,
Inc. Announces Pricing of Public Offering
DURHAM,
N.C. – August 16, 2024 — Scorpius Holdings, Inc. (NYSE American: SCPX), (“Scorpius”, or the “Company”),
an integrated contract development and manufacturing organization (CDMO), today announced the new pricing of an underwritten public offering
of 12,500,000 shares of common stock (or pre-funded warrants (“Pre-Funded Warrants”) in lieu thereof). Each share of common
stock (or Pre-Funded Warrant) is being offered at a public offering price of $1.00 per share (inclusive of the Pre-Funded Warrant exercise
price). The gross proceeds to the Company from the offering are expected to be approximately $12,500,000, before deducting underwriting
discounts and offering expenses. In addition, the Company has granted the underwriters a 45-day option to purchase up to an additional
1,875,000 shares of common stock and/or Pre-Funded Warrants solely to cover over-allotments, if any.
As previously announced, the Company
had terminated the pricing of its underwritten public offering that it had announced on August 6, 2024. Subsequently, the Company requested,
and the NYSE American approved, a financial viability exception
to the NYSE American stockholder approval rules that would allow the Company to proceed with the closing of the underwritten public offering
upon the terms set forth above.
The offering is expected to close on August 19, 2024,
subject to satisfaction of customary closing conditions and trading of the Company’s common stock on the NYSE American is expected
to resume that same day.
The Company intends to use the net proceeds of the
offering to fund working capital and for general corporate purposes.
ThinkEquity is acting as sole book-running manager
for the offering.
A registration statement on Form S-1 (File No. 333-280887),
as amended, including a preliminary prospectus, relating to the securities being offered was filed with the Securities and Exchange Commission
(“SEC”) and became effective on August 6, 2024. This offering is being made only by means of a prospectus. Copies of
the final prospectus, when available, may be obtained from ThinkEquity, 17 State Street, 41st Floor, New York, New York 10004.
The final prospectus will be filed with the SEC and will be available on the SEC’s website located at http://www.sec.gov.
This press release shall not constitute an offer to
sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such
an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or
jurisdiction.
About Scorpius Holdings,
Inc.
Scorpius Holdings Inc. is
an integrated large molecule contract development and manufacturing organization (CDMO) focused on rapidly advancing biologic and cell
therapy programs to the clinic and beyond. Scorpius offers a broad array of analytical testing, process development, and manufacturing
services to pharmaceutical and biotech companies at its state-of-the-art facilities in San Antonio, TX. With an experienced team and new,
purpose-built U.S. facilities, Scorpius is dedicated to transparent collaboration and flexible, high-quality biologics biomanufacturing.
For more information, please visit www.scorpiusbiologics.com.
Forward-Looking Statements
This release contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. In some cases forward-looking statements can be identified by terminology such as
"may," "should," "potential," "continue," "expects," "anticipates," "intends,"
"plans," "believes," "estimates," and similar expressions and include statements regarding the timing and
completion of the proposed offering, the timing that trading will resume and the intended use of proceeds. Important factors that could
cause actual results to differ materially from current expectations include, among others, the ability to complete the proposed offering,
and other factors described in the Company’s annual report on Form 10-K for the year ended December 31, 2023, subsequent quarterly
report on Form 10-Q and any other filings the Company makes with the SEC. The information in this presentation is provided only as of
the date presented, and the Company undertakes no obligation to update any forward-looking statements contained in this press release
on account of new information, future events, or otherwise, except as required by law.
For Investor Relations Inquiries:
David Waldman
+1 (919)-289-4017
investorrelations@nighthawkbio.com
Exhibit 99.2
Scorpius
Holdings, Inc. Announces Closing of Public Offering
DURHAM,
N.C., August 19, 2024 – Scorpius Holdings, Inc. (NYSE American:
SCPX), (“Scorpius”, or the “Company”), an integrated contract development and manufacturing organization (CDMO),
today announced the closing of its underwritten public offering of 14,375,000 shares of common stock (and/or pre-funded warrants (“Pre-Funded
Warrants”) in lieu thereof), including full exercise of the underwriter’s over-allotment option. Each share of common stock
(or Pre-Funded Warrant) was offered at a public offering price of $1.00 per share (inclusive of the Pre-Funded Warrant exercise price),
for gross proceeds of $14,375,000, before deducting underwriting discounts and offering expenses.
The
Company intends to use the net proceeds of the offering to fund working capital and for general corporate purposes.
ThinkEquity
acted as sole book-running manager for the offering.
A
registration statement on Form S-1 (File No. 333-280887) relating to the securities being offered was filed with the Securities and Exchange
Commission (“SEC”) and became effective on August 6, 2024. This offering is being made only by means of a prospectus. Copies
of the final prospectus may be obtained from ThinkEquity, 17 State Street, 41st Floor, New York, New York 10004. The final
prospectus has been filed with the SEC and is available on the SEC’s website located at http://www.sec.gov.
This
press release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities
in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About Scorpius Holdings, Inc.
Scorpius Holdings Inc. is an integrated large
molecule contract development and manufacturing organization (CDMO) focused on rapidly advancing biologic and cell therapy programs to
the clinic and beyond. Scorpius offers a broad array of analytical testing, process development, and manufacturing services to pharmaceutical
and biotech companies at its state-of-the-art facilities in San Antonio, TX. With an experienced team and new, purpose-built U.S. facilities,
Scorpius is dedicated to transparent collaboration and flexible, high-quality biologics biomanufacturing. For more information, please
visit www.scorpiusbiologics.com.
Forward-Looking Statements
This release contains forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995. In some cases forward-looking statements can be identified
by terminology such as "may," "should," "potential," "continue," "expects," "anticipates,"
"intends," "plans," "believes," "estimates," and similar expressions and include statements regarding
the intended use of proceeds. Important factors that could cause actual results to differ materially from current expectations include,
among others, the ability to complete the proposed offering, and other factors described in the Company’s annual report on Form
10-K for the year ended December 31, 2023, subsequent quarterly report on Form 10-Q and any other filings the Company makes with the
SEC. The information in this presentation is provided only as of the date presented, and the Company undertakes no obligation to update
any forward-looking statements contained in this press release on account of new information, future events, or otherwise, except as
required by law.
For Investor Relations Inquiries:
David Waldman
+1 (919)-289-4017
investorrelations@nighthawkbio.com
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Scorpius (AMEX:SCPX)
過去 株価チャート
から 7 2024 まで 8 2024
Scorpius (AMEX:SCPX)
過去 株価チャート
から 8 2023 まで 8 2024