As
filed with the Securities and Exchange Commission on August 12, 2024
Registration
No. _________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MIRA
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
Florida |
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85-3354547 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification Number) |
1200
Brickell Avenue, Suite 1950 #1183,
Miami,
Florida 33131
(786)
432-9792
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Erez
Aminov
Chairman
and Chief Executive Officer
Mira
Pharmaceuticals, Inc.
1200
Brickell Avenue, Suite 1950 #1183,
Miami,
Florida 33131
(786)
432-9792
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Max
Lindenfeld, Esq.
Pearl
Cohen Zedek Latzer Baratz LLP
7
Times Square, 19th Floor
New
York, New York 10036
Phone:
(646) 878-0800
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer ☐ |
Smaller
reporting company ☒ |
|
Accelerated
filer ☐ |
Emerging
growth company ☒ |
|
Non-accelerated
filer ☒ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective
on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Registration Statement contains two prospectuses:
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a
base prospectus which covers the offering, issuance and sale by us of up to $100,000,000
of our common stock, preferred stock, warrants and/or units; and |
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a
sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of up to $19,268,571
of our common stock that may be issued and sold under the At The Market Agreement with Rodman & Renshaw LLC, subject to the limitations
set forth in General Instruction I.B.6 of Form S-3. |
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
other than the shares under the sales agreement will be specified in a prospectus supplement to the base prospectus. The specific terms
of the securities to be issued and sold under the sales agreement are specified in the sales agreement prospectus that immediately follows
the base prospectus. The up to $19,268,571 of common stock that may be offered, issued and sold under the sales agreement prospectus
is included in the $100,000,000 of securities that may be offered, issued and sold by us under the base prospectus.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
containing this prospectus filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION DATED AUGUST 12, 2024
PROSPECTUS
$100,000,000
MIRA
PHARMACEUTICALS, Inc.
Common
Stock
Preferred
Stock
Warrants
Units
We
may offer and sell, from time to time, in one or more offerings, together or separately, any combination of the securities described
in this prospectus. The aggregate initial offering price of the securities that we offer will not exceed $100,000,000. This prospectus
describes some of the general terms that may apply to these securities and the general manner in which they may be offered. The specific
terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one or more supplements
to this prospectus. This prospectus may not be used to sell securities unless accompanied by the applicable prospectus supplement. Before
investing, you should carefully read this prospectus and any related prospectus supplement.
We
may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous
or delayed basis. If an offering of securities involves any underwriters, dealers or agents, then the prospectus supplement will name
the underwriters, dealers or agents and will provide information regarding any fee, commission or discount arrangements made with those
underwriters, dealers or agents.
We
are a “smaller reporting company” and “emerging growth company” under the federal securities laws and, as such,
are subject to reduced public company disclosure standards for this prospectus and future filings. See the section entitled “Prospectus
Summary—Implications of Being a Smaller Reporting Company and Emerging Growth Company” for additional information.
Our
common stock is listed on the Nasdaq Capital Market under the ticker symbol “MIRA.” Our principal executive offices are located
at 1200 Brickell Avenue, Suite 1950 #1183, Miami, Florida 33131, and our telephone number is (786) 432-9792.
The
aggregate market value of our outstanding common stock held by non-affiliates as of the date of this prospectus was approximately $57.8
million, based on approximately 14.78 million shares of common stock outstanding, approximately 11.54 million of which were held by non-affiliates,
and a per share price of $5.01 based on the closing sale price of our common stock on July 22, 2024, as reported on the Nasdaq Capital
Market. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period
that ends on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
registered on this registration statement in a public primary offering with a value exceeding more than one-third of our public float
in any 12-month period so long as our public float remains below $75 million.
Investing
in our securities involves risks. You should refer to the section entitled “Risk Factors” on page 2 of this prospectus,
as well as the risk factors included in the applicable prospectus supplement and certain of our periodic reports and other
information that we file with the Securities and Exchange Commission that are incorporated by reference in this prospectus and the
applicable prospectus supplement and carefully consider that information before buying our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, or the SEC, using a shelf
registration process on Form S-3. Under the shelf registration rules, using this prospectus, together with the applicable prospectus
supplement, we may sell from time to time, in one or more offerings, on a continuous or delayed basis, the securities described in this
prospectus for an aggregate initial offering price of up to $100,000,000. The registration statement that contains this prospectus (including
the exhibits to the registration statement) contains additional information about us and the securities we are offering under this prospectus.
You can read that registration statement at the SEC website at http://www.sec.gov or at the SEC office mentioned under the heading “Where
You Can Find Additional Information.”
This
prospectus provides you with a general description of the securities we may offer. Each time we sell any of these securities, we will
provide one or more prospectus supplements containing specific information about the terms of that offering. The prospectus supplements
may also add, update or change information contained in this prospectus. If information in the applicable prospectus supplement is inconsistent
with the information in this prospectus, then the information in such prospectus supplement will apply and will supersede the information
in this prospectus. You should carefully read both this prospectus and any prospectus supplement together with additional information
described under the heading “Where You Can Find Additional Information” before you invest.
You
should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with different or additional information. If anyone provides you with different or additional information,
you should not rely on it.
You
should not assume that the information in this prospectus or any accompanying prospectus supplement or any document incorporated by reference
is accurate as of any date other than the date of that document.
Neither
we nor anyone acting on our behalf is making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
In
this prospectus, the terms “MIRA Pharmaceuticals,” “Company,” “we,” “us” and “our”
refer to MIRA Pharmaceuticals, Inc. unless the context requires otherwise.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Before deciding whether to invest in our securities,
you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus
supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item
1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, which is incorporated
herein by reference, as updated or superseded by the risks and uncertainties described under similar headings in the other documents
that are filed after the date hereof and incorporated by reference into this prospectus and any prospectus supplement related to a particular
offering. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. Past financial performance may not be a reliable indicator
of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks
actually occurs, our business, business prospects, financial condition or results of operations could be seriously harmed. This could
cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully
the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement
contain “forward-looking statements,” which include information relating to future events, future financial performance,
strategies, expectations, competitive environment and regulation. Words such as “may,” “should,” “could,”
“would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,”
“future,” “intends,” “plans,” “believes,” “estimates,” and similar expressions,
as well as statements in future tense, identify forward-looking statements. Forward-looking statements should not be read as a guarantee
of future performance or results and will probably not be accurate indications of when such performance or results will be achieved.
Forward-looking statements are based on information we have when those statements are made or our management’s good faith belief
as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual performance or results
to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could cause such
differences include, but are not limited to:
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our
ability to obtain and maintain regulatory approval of our product candidates; |
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our
ability to successfully commercialize and market our product candidates, if approved; |
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our
ability to contract with third-party suppliers, manufacturers and other service providers and their ability to perform adequately; |
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the
potential market size, opportunity, and growth potential for our product candidates, if approved; |
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our
ability to obtain additional funding for our operations and development activities; |
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the
accuracy of our estimates regarding expenses, capital requirements and needs for additional financing; |
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the
initiation, timing, progress and results of our pre-clinical studies and clinical trials, and our research and development programs; |
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the
timing of anticipated regulatory filings; |
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the
timing of availability of data from our clinical trials; |
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our
future expenses, capital requirements, need for additional financing, and the period over which we believe that our existing cash
and cash equivalents will be sufficient to fund our operating expenses and capital expenditure requirements; |
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our
ability to retain the continued service of our key professionals and to identify, hire and retain additional qualified professionals; |
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our
ability to advance product candidates into, and successfully complete, clinical trials; |
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our
ability to recruit and enroll suitable patients in our clinical trials; |
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the
timing or likelihood of the accomplishment of various scientific, clinical, regulatory, and other product development objectives; |
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the
pricing and reimbursement of our product candidates, if approved; |
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the
rate and degree of market acceptance of our product candidates, if approved; |
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the
implementation of our business model and strategic plans for our business, product candidates, and technology; |
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the
scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology; |
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developments
relating to our competitors and our industry; |
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our
ability to regain and maintain compliance with the listing standards of the Nasdaq Capital Market; |
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the
development of major public health concerns and the future impact of such concerns on our clinical trials, business operations and
funding requirements; and |
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other
factors discussed in this prospectus. |
You
should review carefully the section entitled “Risk Factors” beginning on page 2 of this prospectus for a discussion
of these and other risks that relate to our business and investing in our securities. The forward-looking statements contained or incorporated
by reference in this prospectus or any prospectus supplement are expressly qualified in their entirety by this cautionary statement.
We do not undertake any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date
on which any such statement is made or to reflect the occurrence of unanticipated events.
PROSPECTUS
SUMMARY
The
items in the following summary are described in more detail later in this prospectus and in the accompanying prospectus. This summary
provides an overview of selected information and does not contain all the information you should consider before investing in our securities.
Therefore, you should read the entire prospectus carefully, including the “Risk Factors” section, and other documents or
information included or incorporated by reference in this prospectus and the accompanying prospectus before making any investment decision.
As used in this prospectus, unless the context otherwise indicates, the terms “we,” “our,” “us,”
or “the Company” refer to MIRA Pharmaceuticals, Inc., a Florida corporation, and its subsidiaries taken as a whole.
Overview
We
are a pre-clinical-stage pharmaceutical development company with two neuroscience programs targeting a broad range of neurologic and
neuropsychiatric disorders. We hold exclusive license rights in the U.S., Canada and Mexico for Ketamir-2, a novel, patent pending oral
ketamine analog under pre-clinical investigation to potentially deliver ultra-rapid antidepressant effects, providing hope for individuals
battling treatment-resistant depression (or TRD), major depressive disorder with suicidal ideation (or MDSI) and potentially post-traumatic
stress disorder (or PTSD).
Additionally,
our novel oral pharmaceutical marijuana molecule, MIRA-55, is being studied for its potential to alleviate neuropathic pain, as well
as anxiety and cognitive decline, symptoms commonly associated with early-stage dementia. MIRA-55, if approved by the U.S. Food and Drug
Administration (or FDA), could mark a significant advancement in addressing various neuropsychiatric, inflammatory, and neurologic diseases
and disorders.
The
U.S. Drug Enforcement Administration (DEA)’s scientific review of Ketamir-2 concluded that it would not be considered a controlled
substance or listed chemical under the Controlled Substances Act (CSA) and its governing regulations. Additionally, we have submitted
the required paperwork for MIRA-55 to be evaluated by the DEA.
The
Securities We May Offer
We
may offer up to $100,000,000 of common stock, preferred stock, warrants and/or units in one or more offerings and in any combination.
This prospectus provides you with a general description of the securities we may offer. A prospectus supplement, which we will provide
each time we offer securities, will describe the specific amounts, prices and terms of these securities.
Common
Stock
Holders
of shares of our common stock are entitled to one vote for each share held on all matters submitted to a vote of shareholders. Accordingly,
holders of a majority of the shares of our common stock entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of shares of our common stock are entitled to receive proportionately any dividends if and when such dividends
are declared by our board of directors, subject to any preferential dividend rights of outstanding preferred stock. Upon the liquidation,
dissolution or winding up of the company, the holders of our common stock are entitled to receive ratably net assets available after
the payment of all debts and other liabilities and subject to the prior rights of holders of any outstanding preferred stock. The rights,
preferences, and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders
of shares of any series of preferred stock that we may designate and issue in the future.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “MIRA.”
Preferred
Stock
We
may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the rights, preferences,
stated values, qualifications or limitations, without any further vote or action by stockholders. Convertible preferred stock will be
convertible into our common stock or exchangeable for our other securities. Conversion may be mandatory or at your option or both and
would be at prescribed conversion rates.
If
we sell any series of preferred stock under this prospectus and applicable prospectus supplements, we will fix the rights, preferences,
privileges and restrictions of the preferred stock of such series in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering
before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement related to the
series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Warrants
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities. We will evidence
each series of warrants by warrant certificates that we will issue under a separate agreement. We may enter into warrant agreements with
a bank or trust company that we select to be our warrant agent. We will indicate the name and address of the warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
In
this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus
supplement related to the particular series of warrants being offered, as well as the warrant agreements and warrant certificates that
contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of warrant agreement or warrant certificate containing the
terms of the warrants we are offering before the issuance of the warrants.
Units
We
may issue units consisting of common stock, preferred stock and/or warrants for the purchase of common stock or preferred stock in one
or more series. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable
prospectus supplement related to the series of units being offered, as well as the unit agreements that contain the terms of the units.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference reports that
we file with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the series of units we are
offering before the
Implications
of Being a Smaller Reporting Company and Emerging Growth Company
We
are a “smaller reporting company,” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), meaning that the market value of our shares held by non-affiliates was less than $700 million and our annual revenue was
less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i)
the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. As
a smaller reporting company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller
reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of
audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies
have reduced disclosure obligations regarding executive compensation. Additionally, as a smaller reporting company, we may continue to
take advantage of the exception from compliance with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002, as amended. If investors consider our shares of common stock less attractive as a result of our election to use the scaled-back
disclosure permitted for smaller reporting companies, there may be a less active trading market for our common shares and our share price
may be more volatile.
We
are also an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth
company until the earliest to occur of: (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenues;
(ii) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates;
(iii) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities; and (iv) the last day
of the fiscal year ending after the fifth anniversary of our first sale of common equity securities pursuant to a U.S. registration.
As
an emerging growth company, we may take advantage of certain exemptions from various reporting requirements that are applicable to other
publicly traded entities that are not emerging growth companies. These exemptions include: (i) the option to present only two years of
audited financial statements and related discussion in the section titled “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in our filings with the SEC; (ii) not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended; (iii) not being required to comply with any requirement that
may be adopted by the Public Company Accounting Oversight Board, or PCAOB, regarding mandatory audit firm rotation or a supplement to
the auditor’s report providing additional information about the audit and the financial statements; (iv) not being required to
submit certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency,”
and “say-on-golden parachutes”; and (v) not being required to disclose certain executive compensation related items such
as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation
to median employee compensation.
Corporate
and Other Information
We
were incorporated under the laws of the State of Florida on September 3, 2020 and commenced substantive operations, including our pharmaceutical
development program, in late 2020. Our principal executive offices are located at 1200 Brickell Avenue, Suite 1950 #1183, Miami, Florida
33131. Our telephone number is (786) 432-9792. Our website address is www.mirapharmaceuticals.com. Information accessed through our website
is not incorporated into this prospectus and is not a part of this prospectus.
USE
OF PROCEEDS
Unless
we specify another use in the applicable prospectus supplement, we will use the net proceeds from the sale of the securities offered
by us for general corporate purposes, which may include, among other things, debt repayment, working capital and/or capital expenditures.
We
may also use such proceeds to fund acquisitions of product candidates or technologies that complement our current business. We may set
forth additional information on the use of net proceeds from the sale of the securities we offer under this prospectus in a prospectus
supplement related to a specific offering.
Investors
are cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of the proceeds of this offering. The amounts and timing of our actual expenditures
will depend upon numerous factors, including the amount of cash generated by our operations, the amount of competition and other operational
factors. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
From
time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing
allocation of resources, including the proceeds of this offering, is being optimized. Circumstances that may give rise to a change in
the use of proceeds include:
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a
change in development plan or strategy; |
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delays
or difficulties with our clinical trials; |
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negative
results from our clinical trials; |
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difficulty
obtaining regulatory approval; |
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failure
to achieve sales as anticipated; |
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the
addition of new product candidates or technologies; |
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our
ability to negotiate definitive agreement with acquisition candidates; or |
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the
availability of other sources of cash including cash flow from operations and new bank debt financing arrangements, if any. |
DESCRIPTION
OF CAPITAL STOCK
The
following description of the material terms of our amended and restated articles of incorporation and our amended and restated bylaws
is a summary, does not purport to be complete and is qualified in its entirety by reference to our third amended and restated articles
of incorporation and amended and restated bylaws, which are filed as exhibits to the registration statement of which this prospectus
is a part and are incorporated by reference into this prospectus.
After
giving effect to the 1-for-5 reverse stock split that we completed on June 28, 2023, the total number of shares of common stock our company
is authorized to issue is presently 100,000,000, $0.0001 par value per share. The total number of shares of preferred stock our company
is authorized to issue is 10,000,000, $0.0001 par value per share.
Corporate
Governance
We
are a corporation organized under the laws of the state of Florida and are governed by the Florida Business Corporation Act, or the FBCA,
our amended and restated articles of incorporation and our amended and restated bylaws.
Common
Stock
Holders
of shares of our common stock are entitled to one vote for each share held on all matters submitted to a vote of shareholders. Accordingly,
holders of a majority of the shares of our common stock entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of shares of our common stock are entitled to receive proportionately any dividends if and when such dividends
are declared by our board of directors, subject to any preferential dividend rights of outstanding preferred stock. Upon the liquidation,
dissolution or winding up of the company, the holders of our common stock are entitled to receive ratably net assets available after
the payment of all debts and other liabilities and subject to the prior rights of holders of any outstanding preferred stock. The rights,
preferences, and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders
of shares of any series of preferred stock that we may designate and issue in the future.
Preferred
Stock
Under
the terms of our amended and restated articles of incorporation, or the articles, the board of directors is authorized to designate and
issue up to 10,000,000 shares of preferred stock in one or more series without shareholder approval. Our board of directors will have
discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences, of each series of preferred stock.
It
is not possible to state the actual effect of the issuance of any shares of preferred stock upon the rights of holders of our common
stock until the board of directors determines the specific rights of the holders of the preferred stock. However, these effects might
include:
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restricting
dividends on the common stock; |
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diluting
the voting power of the common stock; |
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impairing
the liquidation rights of the common stock; and |
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delaying
or preventing a change in control of the company. |
There
are no shares of preferred stock outstanding and, at present, we have no plans to issue any shares of preferred stock.
Dividends
and Other Distributions
The
holders of our common stock will be entitled to receive proportionately any cash or stock dividends if and when such dividends are declared
by the board of directors, subject to any preferential dividend rights of outstanding preferred stock. In the event of the dissolution
or liquidation of the company, after the full preferential rights, if any, on any outstanding preferred stock has been paid to or set
aside for the holders of such preferred stock, the holders of our common stock will be entitled to receive proportionately all of our
remaining assets.
The
declaration and payment of any dividend will be subject to the discretion of our board of directors, subject to applicable laws. The
time and amount of any dividend will depend on a number of factors, including our financial condition, results of operations, capital
requirements, contractual restrictions, general business conditions, and any other factors that our board of directors may deem relevant.
We
currently intend to retain all available funds and any future earnings for general corporate purposes, including working capital, operating
expenses, and capital expenditures, and do not anticipate declaring or paying any cash dividends on our common stock in the foreseeable
future. See “Dividend Policy.”
Number
and Election of Directors
Our
Board consists of five members. The holders of common stock and any other class of stock of our company, to the extent they shall have
the right to vote, shall retain the right to elect and remove all members of the board of directors.
Quorum/Voting
At
all meetings of our board of directors, a majority of the total number of directors constitutes a quorum. If there is a quorum, a vote
of the majority of the directors present at the meeting is considered an act of our board of directors.
Removal
of Directors
Our
amended and restated articles provide that any director may be removed from office, but only for cause by the affirmative vote of not
less than a majority of our shareholders entitled to vote in the election of directors. “Cause” is construed to exist only
if the director whose removal is proposed has been convicted of a felony or has been adjudged to be liable for willful misconduct in
the performance of his or her duties to us in a matter which has a material adverse effect on our business.
Vacancies
on the Board of Directors
A
vacancy on our board of directors may be filled by a vote of a majority of the remaining members of the board of directors, even if less
than a quorum, at any meeting of the board of directors. A person so elected by the board of directors to fill a vacancy shall hold office
for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor
shall have been duly elected and qualified.
Voting
by Shareholders
Each
holder of our common stock is entitled to one vote per share for the election of directors and for all other corporate purposes.
Amendment
of Articles
The
FBCA allows us to amend our amended and restated articles at any time to add or change a provision that is required or permitted to be
included in the articles of incorporation or to delete a provision that is not required to be included in the articles of incorporation.
Our board of directors can propose one or more amendments for submission to shareholders and may condition its submission of the proposed
amendment on any basis if it provides certain notice and includes certain information regarding the proposed amendment in that notice.
The provisions in our articles that require a greater voting requirement than provided in the FBCA may only be amended by the same vote
required to take action under that voting requirement.
Amendment
of Bylaws
Our
bylaws may be amended or repealed, and new bylaws may be adopted by our shareholders at any annual or special meetings at which a quorum
is present. The bylaws may also be amended or repealed, and new bylaws may be adopted by our board of directors by affirmative vote of
a majority of the number of directors present at any meeting at which a quorum is in attendance. Notwithstanding the foregoing, pursuant
to our articles, the provisions of our bylaws that require a greater voting requirement than provided in the FBCA may only be amended
by the same vote required to take action under that voting requirement.
Anti-Takeover
Effects of Various Provisions of Florida Law, Our Amended and Restated Articles of Incorporation and Our Bylaws
Provisions
of Florida law have certain anti-takeover effects. Our amended and restated articles of incorporation and bylaws also contain provisions
that may have similar effects.
Florida
Anti-Takeover Statutes
The
control share acquisition statute, Section 607.0902 of the FBCA, generally provides that in the event a person acquires voting shares
of the company in excess of 20% of the voting power of all of our issued and outstanding shares, such acquired shares will not have any
voting rights unless such rights are restored by the holders of a majority of the votes of each class or series entitled to vote separately,
excluding shares held by the person acquiring the control shares or any of our officers or employees who are also directors of the company.
Certain acquisitions of shares are exempt from these rules, such as shares acquired pursuant to the laws of intestate succession or pursuant
to a gift or testamentary transfer, pursuant to a merger or share exchange effected in compliance with the FBCA if we are a party to
the agreement, or pursuant to an acquisition of our shares if the acquisition has been approved by our board of directors before the
acquisition. The control share acquisition statute generally applies to any “issuing public corporation,” which means a Florida
corporation which has:
●
One hundred or more shareholders;
●
Its principal place of business, its principal office, or substantial assets within Florida; and
●
Either (i) more than 10% of its shareholders are resident in Florida; (ii) more than 10% of its shares are owned by residents of Florida;
or (iii) one thousand shareholders are resident in Florida.
The
affiliated transaction (or so-called “business combination”) statute, Section 607.0901 of the FBCA, provides that we may
not engage in certain mergers, consolidations, sales of assets, issuances of stock, reclassifications, recapitalizations, and other affiliated
transactions with any “interested shareholder” for a period of three years following the time that such shareholder became
an interested shareholder, unless:
●
Prior to the time that such shareholder became an interested shareholder, our board of directors approved either the affiliated transaction
or the transaction which resulted in the shareholder becoming an interested shareholder; or
●
Upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder
owned at least 85% of our voting shares outstanding at the time the transaction commenced; or
●
At or subsequent to the time that such shareholder became an interested shareholder, the affiliated transaction is approved by our board
of directors and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of at
least two-thirds of the outstanding voting shares which are not owned by the interested shareholder.
An
“interested shareholder” is generally defined as any person who is the beneficial owner of more than 15% of our outstanding
voting shares.
The
voting requirements set forth above do not apply to a particular affiliated transaction if one or more conditions are met, including,
but not limited to, the following: if the affiliated transaction has been approved by a majority of our disinterested directors; if we
have not had more than 300 shareholders of record at any time during the three years preceding the date the affiliated transaction is
announced; if the interested shareholder has been the beneficial owner of at least 80% of our outstanding voting shares for at least
three years preceding the date the affiliated transaction is announced; or if the consideration to be paid to the holders of each class
or series of voting shares in the affiliated transaction meets certain requirements of the statute with respect to form and amount, among
other things.
No
Cumulative Voting
The
FBCA provides that shareholders do not have the right to cumulate votes in the election of directors unless the articles of incorporation
provide otherwise. Our articles do not provide for cumulative voting.
Advance
Notice Requirements for Shareholder Proposals and Director Nominations; Calling a Special Meeting
Our
amended and restated bylaws provide that shareholders seeking to bring business before an annual meeting must provide timely notice of
their proposal in writing to the corporate secretary. To be timely, a shareholder’s notice must have been received on or before
December 31 of the year immediately preceding the annual meeting; provided, however, that in the event that the date of the annual meeting
is on or after May 1 in any year, notice by the shareholder to be timely must be received not later than the close of business on the
day which is determined by adding to December 31 of the year immediately preceding such annual meeting the number of days starting with
May 1 and ending on the date of the annual meeting in such year. The amended and restated bylaws also specify requirements as to the
form and content of a shareholder’s notice. These provisions may impede shareholders’ ability to bring matters before an
annual meeting of shareholders or make nominations for directors at an annual meeting of shareholders.
Our
amended and restated bylaws also provide that a special meeting of shareholders can only be called by our chairman of the board of directors,
our chief executive officer, our president (in the absence of a chief executive officer), a majority of our board of directors or the
holders of 10% or more of all of our votes entitled to be cast on any issue proposed to be considered at the special meeting of shareholders.
Authorized
But Unissued Shares
Our
authorized but unissued shares of common stock and preferred stock will be available for future issuance without shareholder approval.
We could use these additional shares for a variety of corporate purposes, including future public offerings to raise additional capital,
acquisitions of other businesses or entities and issuances under employee benefit plans. Additionally, we could issue a series of preferred
stock that could, depending on its terms, impede the completion of a merger, tender offer or other takeover attempt. Our board of directors
will make any determination to issue such shares based on its judgment as to the best interests of us and our shareholders. The board
of directors, in so acting, could issue preferred stock having terms that could discourage an acquisition attempt through which an acquiror
may be able to change the composition of the board of directors, including a tender offer or other transaction that some, or a majority,
of our shareholders might believe to be in their best interests or in which shareholders might receive a premium over the then-current
market price of the common stock.
Exclusive
Jurisdiction
Our
amended and restated bylaws provide that, unless we consent in writing to the selection of an alternative forum, the sole and exclusive
forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty
owed by any of our current or former directors, officers or other employees to us or our shareholders, (iii) any action arising pursuant
to any provision of the FBCA, our amended and restated articles of incorporation or our amended and restated bylaws, or (iv) any other
action asserting a claim that is governed by the internal affairs doctrine shall be a state court located within the state of Florida
(or, if a state court located within the state of Florida does not have jurisdiction, the federal district court for the Middle District
of Florida); provided that, the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by
the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. Our bylaws also provide that, unless we consent
in writing to the selection of an alternative forum, the U.S. federal district courts shall be the exclusive forum for the resolution
of any claims arising under the Securities Act. Any person or entity purchasing or otherwise acquiring any interest in our securities
shall be deemed to have notice of and consented to these provisions. Although we believe these provisions benefit us by providing increased
consistency in the application of law for the specified types of actions and proceedings, the provisions may have the effect of discouraging
lawsuits against us or our directors and officers. We note that investors cannot waive compliance with the federal securities laws and
the rules and regulations thereunder. Please also see the section titled “Risk Factors—Risks Related to Ownership of our
Common Stock—Our amended and restated bylaws designates the state courts located within the state of Florida as the exclusive forum
for substantially all disputes between us and our shareholders and the federal district courts as the exclusive forum for Securities
Act claims, which could limit our shareholders’ ability to obtain a favorable judicial forum for disputes with us.”
Preemptive
Rights
No
holder of our common stock has any preemptive or subscription rights to acquire shares of our capital stock.
DESCRIPTION
OF WARRANTS
The
following describes some of the general terms and provisions of warrants we may issue. Warrants may be issued independently or together
with any other securities offered by any prospectus supplement and other offering materials, if any, and may be attached to or separate
from those securities. Warrants may be issued under warrant agreements to be entered into between us and a warrant agent or may be represented
by individual warrant certificates, all as specified in the applicable prospectus supplement and other offering materials, if any. The
warrant agent, if any, for any series of warrants will act solely as our agent and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of warrants.
The
applicable prospectus supplement and any other offering materials relating to any warrants we may issue will specify the terms of the
warrants, including:
●
the title and aggregate number of the warrants;
●
the price or prices at which the warrants will be issued;
●
the title, amount and terms of the securities purchasable upon exercise of the warrants;
●
the title, amount and terms of the securities offered with the warrants and the number of warrants issued with each such security;
●
the date, if any, on and after which the warrants and the related securities will be separately transferable;
●
the price at which the related securities may be purchased upon exercise of the warrants;
●
the exercise period for the warrants;
●
the minimum or maximum number of warrants which may be exercised at any one time;
●
any applicable anti-dilution, redemption or call provisions;
●
any applicable book-entry provisions; and
●
any other terms of the warrants.
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting
rights, if any.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, shares of preferred
stock or warrants or any combination of such securities, including guarantees of any securities.
The
applicable prospectus supplement and any other offering materials relating to any units issued under the registration statement of which
this prospectus is a part will specify the terms of the units, including:
●
the terms of the units and of any of the common stock, preferred stock and warrants comprising the units, including whether and under
what circumstances the securities comprising the units may be traded separately;
●
a description of the terms of any unit agreement governing the units; and
●
a description of the provisions for the payment, settlement, transfer or exchange of the units.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus to one or more underwriters or dealers for resale, through agents, directly to purchasers
or through a combination of any such methods of sale. The name of any such underwriter, dealer or agent involved in the offer and sale
of the securities, the amounts underwritten and the nature of its obligation to take the securities will be stated in the applicable
prospectus supplement. We have reserved the right to sell the securities directly to investors on our own in those jurisdictions where
we are authorized to do so. The sale of the securities may be effected in transactions: (i) on any national or international securities
exchange or quotation service on which the securities may be listed or quoted at the time of sale; (ii) in the over-the-counter market;
(iii) in transactions otherwise than on such exchanges or in the over-the-counter market; or (iv) through the writing of options.
We
may issue the securities as a dividend or distribution to our existing security holders. In some cases, we or dealers acting with us
or on our behalf may also purchase securities and re-offer them to the public by one or more of the methods described above. This prospectus
may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable
prospectus supplement.
We,
our agents and underwriters on our behalf may offer and sell the securities at a fixed price or prices that may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices.
We
may solicit offers to purchase securities directly from the public from time to time. We also may designate agents from time to time
to solicit offers to purchase securities from the public on our behalf. If required, the prospectus supplement relating to any particular
offering of securities will name any agents designated to solicit offers and will include information about any commissions they may
be paid in that offering.
We
may sell securities from time to time to one or more underwriters, who would purchase the securities as principal for resale to the public,
either on a firm-commitment or best-efforts basis. If we use underwriters to sell securities, we may enter into an underwriting agreement
with the underwriters at the time of the sale and will name them in the applicable prospectus supplement. In connection with the sale
of the securities, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions
and may also receive commissions from purchasers of the securities for whom they may act as agents. Any underwriting compensation paid
by us to underwriters or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers, will be set forth in the applicable prospectus supplement to the extent required by applicable
law. Underwriters may sell the securities to or through dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or commissions (which may be changed from time to time) from the purchasers for whom
they may act as agents.
The
dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended, or the Securities Act.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers from certain
specified institutions to purchase offered securities from us at the public offering price set forth in the prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject to
any conditions set forth in the applicable prospectus supplement, and the prospectus supplement will set forth the commission payable
for solicitation of such contracts. The underwriters and other persons soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters,
dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution towards certain
civil liabilities, including any liabilities under the Securities Act.
To
facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the price of the securities. These may include over-allotment, stabilization, syndicate short-covering transactions
and penalty bids. Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions
involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short-covering
transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate
short positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when the securities originally sold
by the dealers are purchased in covering transactions to cover syndicate short positions. These activities may stabilize, maintain or
otherwise affect the market price of the securities. As a result, these transactions may cause the price of the securities sold in an
offering to be higher than it would otherwise be in the open market. These transactions may be effected on an exchange or automated quotation
system, if the securities are listed on that exchange or admitted for trading on that automated quotation system, or in the over-the-counter
market or otherwise. These transactions, if commenced, may be discontinued by the underwriters at any time.
The
amount of expenses expected to be incurred by us in connection with any issuance of securities will be set forth in the applicable prospectus
supplement.
Under
Rule 15c6-l of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties
to any such trade expressly agree otherwise. Your prospectus supplement may provide that the original issue date for your securities
may be more than three scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to
trade securities on any date prior to the third business day before the original issue date for your securities, you will be required,
by virtue of the fact that your securities initially are expected to settle in more than three scheduled business days after the trade
date for your securities, to specify alternative settlement arrangements to prevent a failed settlement.
Underwriters,
agents and their affiliates may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary
course of their businesses. In connection with the distribution of the securities offered under this prospectus, we may enter into swap
or other hedging transactions with, or arranged by, underwriters or agents or their affiliates. These underwriters or agents or their
affiliates may receive compensation, trading gain or other benefits from these transactions.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplements, certain legal matters in connection with any offering of securities made
by this prospectus will be passed upon for us by Pearl Cohen Zedek Latzer Baratz LLP, New York, New York. If the securities are being
distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the
related prospectus supplement.
EXPERTS
The
consolidated financial statements of MIRA Pharmaceuticals, Inc. as of December 31, 2023 and for the years then ended included in the
Annual Report on Form 10-K for the year ended December 31, 2023, have been incorporated by reference herein and in this prospectus in
reliance upon the report of Cherry Bekaert LLP (which report includes an explanatory paragraph regarding the existence of substantial
doubt about the Company’s ability to continue as a going concern), independent registered public accounting firm, incorporated
by reference herein, and upon the authority of said firm as experts in accounting and auditing
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith file annual,
quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. The Securities and
Exchange Commission maintains a website that contains such reports, proxy and information statements and other information regarding
registrants that file electronically with the Securities and Exchange Commission. The address of the Securities and Exchange Commission’s
website is www.sec.gov.
We
make available free of charge on or through our website at www.mirapharmaceuticals.com, our Annual Reports on Form 10-K, Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with or otherwise
furnish it to the Securities and Exchange Commission.
We
have filed with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended, relating
to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information
about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can
obtain a copy of the registration statement, at prescribed rates, from the Securities and Exchange Commission at the address listed above,
or for free at www.sec.gov. The registration statement and the documents referred to below under “Incorporation of Certain Information
By Reference” are also available on our website, www.mirapharmaceuticals.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (i) after the date of the Form S-3 with respect to securities offered by this prospectus and prior to the effectiveness
of such registration statement and (ii) after the date of this prospectus and before the end of the offering of the securities pursuant
to this prospectus:
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 1, 2024; |
|
|
|
|
● |
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the SEC on May 13, 2024; |
|
|
|
|
● |
Our
Current Reports on Form 8-K filed with the SEC on January
17, 2024, March
7, 2024, March
13, 2024, May
29, 2024, June
28, 2024, July
12, 2024, July
19, 2024, July
24, 2024, August 8, 2024, and August 9, 2024; and |
|
|
|
|
● |
The
description of our common stock in Exhibit 4.4 of our Form 10-K filed on April 1, 2024, including any other amendment or report filed
for the purpose of updating such description. |
Notwithstanding
the foregoing, documents or portions thereof containing information furnished under Items 2.02 and 7.01 of any Current Report on Form
8-K, including the related exhibits under Item 9.01, are not incorporated by reference in this prospectus.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed to
be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus or in
any other document incorporated by reference into this prospectus modifies or supersedes the earlier statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume
that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We
will provide you with a copy of any information that we incorporate by reference into this prospectus or the registration statement that
contains this prospectus, at no cost, by writing or calling us. Requests for such materials should be directed to:
MIRA
Pharmaceuticals, Inc.
Attention: Corporate Secretary
1200 Brickell Avenue, Suite 1950 #1183
Miami,
Florida 33131
Telephone number: (737) 289-0835
You
should not assume that the information in this prospectus or any prospectus supplement, as well as the information we file or previously
filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other
than the respective date of such documents. Our business, financial condition, results of operations and prospects may have changed since
that date.
PROSPECTUS
$100,000,000
MIRA
PHARMACEUTICALS, Inc.
Common
Stock
Preferred Stock
Warrants
Units
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 12, 2024
PROSPECTUS
MIRA
Pharmaceuticals, Inc.
Up
to $19,268,571
Common
Stock
We
have entered into an At The Market Offering Agreement, or the sales agreement, with Rodman & Renshaw LLC, or Rodman & Renshaw,
dated August 12, 2024, relating to the sale of shares of our common stock, par value $0.0001 per share, having an aggregate offering
price of up to $19,268,571 from time to time through Rodman & Renshaw, acting as agent or principal.
Sales
of our common stock, if any, under this prospectus will be made by any method permitted that is deemed an “at the market”
offering as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on
or through the Nasdaq Capital Market or any other existing trading market in the United States for our common stock, sales made to or
through a market maker other than on an exchange or otherwise, directly to Rodman & Renshaw as principal, in negotiated transactions
at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or in any other method permitted
by law. If we and Rodman & Renshaw agree on any method of distribution other than sales of shares of our common stock on or through
the Nasdaq Capital Market or another existing trading market in the United States at market prices, we will file a further prospectus
supplement providing all information about such offering as required by Rule 424(b) under the Securities Act. Under the sales agreement
Rodman & Renshaw is not required to sell any specific number or dollar amount of securities, but Rodman & Renshaw will act as
our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices. There is no arrangement
for funds to be received in any escrow, trust or similar arrangement.
Rodman
& Renshaw will be entitled to compensation at a commission rate of up to 3.0% of the gross sales price per share sold under the sales
agreement. See “Plan of Distribution” beginning on page 12 for additional information regarding the compensation
to be paid to Rodman & Renshaw. In connection with the sale of the shares of common stock on our behalf, Rodman & Renshaw will
be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Rodman & Renshaw will
be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Rodman &
Renshaw with respect to certain liabilities, including liabilities under the Securities Act.
We
are a “smaller reporting company” and “emerging growth company” under the federal securities laws and, as such,
are subject to reduced public company disclosure standards for this prospectus and future filings. See the section entitled “Prospectus
Summary—Implications of Being a Smaller Reporting Company and Emerging Growth Company” for additional information.
The
aggregate market value of our outstanding common stock held by non-affiliates as of the date of this prospectus was approximately $57.8
million, based on approximately 14.78 million shares of common stock outstanding, approximately 11.54 million of which were held by non-affiliates,
and a per share price of $5.01 based on the closing sale price of our common stock on July 22, 2024, as reported on the Nasdaq Capital
Market. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period
that ends on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
registered on this registration statement in a public primary offering with a value exceeding more than one-third of our public float
in any 12-month period so long as our public float remains below $75 million.
Investing
in our securities involves a high degree of risk. You should refer to the section entitled “Risk Factors” on page 5 of
this prospectus, as well as the risk factors included in the applicable prospectus supplement and certain of our periodic reports
and other information that we file with the Securities and Exchange Commission that are incorporated by reference in this prospectus
and the applicable prospectus supplement and carefully consider that information before buying our securities.
Our
common stock is listed on the Nasdaq Capital Market under the ticker symbol “MIRA”. On August 9, 2024, the last reported
sale price of our common stock was $2.10 per share.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Rodman
& Renshaw LLC
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
PROSPECTUS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission using a “shelf”
registration process. This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are
offering, we urge you to carefully read this prospectus, together with the information incorporated by reference as described under the
heading “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” These
documents contain important information that you should consider when making your investment decision.
This
prospectus describes the specific terms of the common stock we are offering and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this
prospectus, on the one hand, and the information contained in any document incorporated by reference in this prospectus, on the other
hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement
in another document having a later date—for example, a document incorporated by reference into this prospectus—the statement
in the document having the later date modifies or supersedes the earlier statement.
You
should only rely on the information contained or incorporated by reference in this prospectus and any issuer free writing prospectus
that we may authorize for use in connection with this offering. No person has been authorized to give any information or make any representations
in connection with this offering other than those contained or incorporated by reference in this prospectus and any related issuer free
writing prospectus in connection with the offering described herein and therein, and, if given or made, such information or representations
must not be relied upon as having been authorized by us. Neither this prospectus nor any related issuer free writing prospectus shall
constitute an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such
person to make such an offering or solicitation. This prospectus does not contain all of the information included in the registration
statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including
its exhibits.
You
should read the entire prospectus and any related issuer free writing prospectus, as well as the documents incorporated by reference
into this prospectus or any related issuer free writing prospectus, before making an investment decision. Neither the delivery of this
prospectus or any issuer free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information
contained or incorporated by reference herein or in any issuer free writing prospectus is correct as of any date subsequent to the date
hereof or of such issuer free writing prospectus. You should assume that the information appearing in this prospectus or any document
incorporated by reference is accurate only as of the date of the applicable documents, regardless of the time of delivery of this prospectus
or any sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date.
PROSPECTUS
SUMMARY
The
items in the following summary are described in more detail later in this prospectus and in the accompanying prospectus. This summary
provides an overview of selected information and does not contain all the information you should consider before investing in our common
stock. Therefore, you should read the entire prospectus and the accompanying prospectus carefully, including the “Risk Factors”
section, and other documents or information included or incorporated by reference in this prospectus and the accompanying prospectus
before making any investment decision. As used in this prospectus, unless the context otherwise indicates, the terms “we,”
“our,” “us,” or “the Company” refer to MIRA Pharmaceuticals, Inc., a Florida corporation, and its
subsidiaries taken as a whole.
Overview
We
are a pre-clinical-stage pharmaceutical development company with two neuroscience programs targeting a broad range of neurologic and
neuropsychiatric disorders. We hold exclusive license rights in the U.S., Canada and Mexico for Ketamir-2, a novel, patent pending oral
ketamine analog under pre-clinical investigation to potentially deliver ultra-rapid antidepressant effects, providing hope for individuals
battling treatment-resistant depression (or TRD), major depressive disorder with suicidal ideation (or MDSI) and potentially post-traumatic
stress disorder (or PTSD).
Additionally,
our novel oral pharmaceutical marijuana molecule, MIRA-55, is being studied for its potential to alleviate neuropathic pain, as well
as anxiety and cognitive decline, symptoms commonly associated with early-stage dementia. MIRA-55, if approved by the U.S. Food and Drug
Administration (or FDA), could mark a significant advancement in addressing various neuropsychiatric, inflammatory, and neurologic diseases
and disorders.
The
U.S. Drug Enforcement Administration (DEA)’s scientific review of Ketamir-2 concluded that it would not be considered a controlled
substance or listed chemical under the Controlled Substances Act (CSA) and its governing regulations. Additionally, we have submitted
the required paperwork for MIRA-55 to be evaluated by the DEA.
Implications
of Being a Smaller Reporting Company and Emerging Growth Company
We
are a “smaller reporting company,” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), meaning that the market value of our shares held by non-affiliates was less than $700 million and our annual revenue was
less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i)
the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. As
a smaller reporting company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller
reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of
audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies
have reduced disclosure obligations regarding executive compensation. Additionally, as a smaller reporting company, we may continue to
take advantage of the exception from compliance with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002, as amended. If investors consider our shares of common stock less attractive as a result of our election to use the scaled-back
disclosure permitted for smaller reporting companies, there may be a less active trading market for our common shares and our share price
may be more volatile.
We
are also an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth
company until the earliest to occur of: (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenues;
(ii) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates;
(iii) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities; and (iv) the last day
of the fiscal year ending after the fifth anniversary of our first sale of common equity securities pursuant to a U.S. registration.
As
an emerging growth company, we may take advantage of certain exemptions from various reporting requirements that are applicable to other
publicly traded entities that are not emerging growth companies. These exemptions include: (i) the option to present only two years of
audited financial statements and related discussion in the section titled “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in our filings with the SEC; (ii) not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended; (iii) not being required to comply with any requirement that
may be adopted by the Public Company Accounting Oversight Board, or PCAOB, regarding mandatory audit firm rotation or a supplement to
the auditor’s report providing additional information about the audit and the financial statements; (iv) not being required to
submit certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency,”
and “say-on-golden parachutes”; and (v) not being required to disclose certain executive compensation related items such
as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation
to median employee compensation.
Recent
Developments
Nasdaq
Minimum Bid Price Deficiency and Compliance
On
July 8, 2024, the Company received a written notice (the “Notice”) from the Listing Qualifications Staff of the Nasdaq Stock
Market (“Nasdaq”) indicating that, because the closing bid price for the Company’s common stock had fallen below $1.00
per share for 30 consecutive business days, the Company no longer complies with the minimum bid price requirement for continued listing
on the Nasdaq Capital Market under Rule 5550(a)(2) of the Nasdaq Listing Rules (the “Minimum Bid Requirement”).
On
August 7, 2024, the Company received a letter from Nasdaq that, for the 11 consecutive business days from July 22, 2024 to August 6,
2024, the closing bid price of the Company’s common stock had been at $1.00 per share or greater. Accordingly, the Company has
regained compliance with the Minimum Bid Requirement and Nasdaq considers the prior bid price deficiency matter now closed.
Corporate
and Other Information
We
were incorporated under the laws of the State of Florida on September 3, 2020 and commenced substantive operations, including our pharmaceutical
development program, in late 2020. Our principal executive offices are located at 1200 Brickell Avenue, Suite 1950 #1183, Miami, Florida
33131. Our telephone number is (786) 432-9792. Our website address is www.mirapharmaceuticals.com. Information accessed through our website
is not incorporated into this prospectus and is not a part of this prospectus.
THE
OFFERING
Common
stock offered by us |
|
Shares
of our common stock having an aggregate offering price of up to $19,268,571. |
|
|
|
Common
stock to be outstanding after the offering(1) |
|
Up
to 8,451,127 shares, assuming a sales price of $2.28 per share, which was the closing price of our common stock on the Nasdaq Capital
Market on August 6, 2024. The actual number of shares issued will vary depending on the sales price at which shares may be sold from
time to time during this offering. |
|
|
|
Manner
of offering |
|
“At
the market offering” as defined in Rule 415(a)(4) under the Securities Act, that may be made from time to time on the Nasdaq
Stock Market, the existing trading market for our common shares, through Rodman & Renshaw, as agent or principal. See section
titled “Plan of Distribution” on page 12 of this prospectus. |
|
|
|
Use
of proceeds |
|
We
intend to use the net proceeds from this offering for general corporate purposes, including the advancement of our drug candidates
in clinical trials, regulatory submissions, potential commercial activity, preclinical research and development, capital expenditures,
and to meet working capital needs. Please see “Use of Proceeds” on page 10. |
|
|
|
Risk
factors |
|
Investing
in our securities involves a high degree of risk. You should read the “Risk Factors” section beginning on page 5 of this
prospectus and in the documents incorporated by reference in this prospectus for a discussion of factors to consider before deciding
to invest in our common stock. |
|
|
|
Nasdaq
Capital Market Symbol |
|
MIRA. |
| (1) | Based
on 14,780,885 shares of common stock outstanding as of August 8, 2024, and excludes the following
securities as of that date: |
|
● |
1,942,334
shares of common stock issuable upon the exercise of stock options outstanding as of August 8, 2024, under our equity incentive plans,
with a weighted average exercise price of $2.84 per share; |
|
|
|
|
● |
57,666
shares of common stock available for future grants under our equity incentive plans as of August 8, 2024; and |
|
|
|
|
● |
1,763,570
shares of common stock issuable upon the exercise of warrants outstanding as of August 8, 2024, with a weighted average exercise
price of $3.88 per share. |
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should carefully
consider the risks and uncertainties described below, together with the information under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2023, all of which are incorporated herein by reference,
as updated or superseded by the risks and uncertainties described under similar headings in the other documents that are filed after
the date hereof and incorporated by reference into this prospectus, together with all of the other information contained or incorporated
by reference in this prospectus. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may also affect our operations. Past financial performance may not be
a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods.
If any of these risks actually occurs, our business, business prospects, financial condition or results of operations could be seriously
harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please
also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
Risks
Related to Our Operations and Financial Condition
We
are an early development-stage company with no revenues. As such, our losses from operations and negative cash flows as of March 31,
2024 raise substantial doubt about our ability to continue as a going concern absent obtaining adequate new debt or equity financings.
As
a very early development-stage enterprise that is focused on the development of a pre-clinical pharmaceutical product, we have generated
no revenue and have an accumulated deficit of $23.0 million through March 31, 2024, and $21.3 million through December 31, 2023. We have
concluded that substantial doubt exists about our ability to continue as a going concern for the 12 months following the issuance of
the financial statements incorporated by reference to this prospectus supplement. As of the issuance date of these financial statements,
we believe that we have sufficient resources available to support our development activities and business operations and timely satisfy
our obligations as they come due into the fourth quarter of 2024. We do not have sufficient cash and cash equivalents as of the date
of filing this Annual Report on Form 10-K to support our operations for at least the 12 months following the issuance of the financial
statements.
To
alleviate the conditions that raise substantial doubt about our ability to continue as a going concern, we plan to secure additional
capital, potentially through a combination of public or private equity offerings and strategic transactions, including potential alliances
and drug product collaborations, however, none of these alternatives are committed at this time. There can be no assurance that we will
be successful in obtaining sufficient funding on terms acceptable to us to fund continuing operations, if at all, identify and enter
into any strategic transactions that will provide the capital that we will require or achieve the other strategies to alleviate the conditions
that raise substantial doubt about our ability to continue as a going concern. If none of these alternatives are available, or if available,
are not available on satisfactory terms, we will not have sufficient cash resources and liquidity to fund our business operations for
at least the 12 months following the date the financial statements are issued. The failure to obtain sufficient capital on acceptable
terms when needed may require us to delay, limit, or eliminate the development of business opportunities and our ability to achieve our
business objectives and our competitiveness, and our business, financial condition, and results of operations will be materially adversely
affected. In addition, the perception that we may not be able to continue as a going concern may cause others to choose not to deal with
us due to concerns about our ability to meet our contractual obligations.
The
report of our independent registered accounting firm on our audited financial statements for the fiscal year ended December 31, 2023
contains an explanatory paragraph relating to our ability to continue as a going concern.
The
auditor’s opinion on our audited financial statements for the year ended December 31, 2023 includes an explanatory paragraph stating
that we have incurred recurring losses from operations that raise substantial doubt about our ability to continue as a going concern.
While we believe that we will be able to obtain the capital we need to continue our operations, there can be no assurances that we will
be successful in these efforts or will be able to resolve our liquidity issues or eliminate our operating losses. If we are unable to
obtain sufficient funding, we would need to significantly reduce our operating plans and curtail some or all of our development efforts.
Accordingly, our business, prospects, financial condition, and results of operations will be materially and adversely affected, and we
may be unable to continue as a going concern. If we seek additional financing to fund our business activities in the future and there
remains substantial doubt about our ability to continue as a going concern, investors or other financing sources may be unwilling to
provide additional funding on commercially reasonable terms or at all.
We
have significant and increasing liquidity needs and will require additional funding.
Our
operations have consumed substantial amounts of cash since inception. For the three-month period ending March 31, 2024, we reported a
net operating cash outflow of $1.0 million and a net cash outflow from investing activities of $0.02 million. For the year ended December
31, 2023, we reported a net operating cash outflow of $4.5 million and a net cash inflow from investing activities of $8.8 million.
Research
and development, and general and administrative expenses, and cash used for operations will continue to be significant and may increase
substantially in the future in connection with new research and development initiatives and continued product commercialization efforts.
We may need to raise additional capital to fund our operations, continue to conduct clinical trials to support potential regulatory approval
of marketing applications and to fund commercialization of our products.
The
amount and timing of our future funding requirements will depend on many factors, including, but not limited to:
● the
timing of FDA approval, if any;
● the
DEA continuing to classify Ketamir-2 and MIRA1a as a substance not subject to CSA;
● the
DEA granting the classification of MIRA-55 as a substance not subject to CSA;
● the
timing and amount of revenue from sales of our products, or revenue from grants or other sources;
● the
rate of progress and cost of our clinical trials and other product development programs;
● costs
of establishing or outsourcing sales, marketing, and distribution capabilities;
● costs
and timing of completion of expanded in-house manufacturing facilities as well as any outsourced commercial manufacturing supply arrangements
for our product candidates;
● costs
of filing, prosecuting, defending, and enforcing any patent claims and other intellectual property rights associated with our product
candidates;
● costs
of operating as a U.S. public company;
● the
effect of competing technological and market developments;
● personnel,
facilities, and equipment requirements; and
● the
terms and timing of any additional collaborative, licensing, co-promotion, or other arrangements that we may establish.
While
we expect to fund our future capital requirements from a number of sources including existing cash balances, future cash flows from operations
and the proceeds from further public offerings, we cannot assure you that any of these funding sources will be available to us on favorable
terms, or at all. Further, even if we can raise funds from all of the above sources, the amounts raised may not be sufficient to meet
our future capital requirements.
Risks
Related to this Offering
Our
management team may invest or spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield
a significant return.
Our
management will have broad discretion over the use of proceeds from this offering. We currently intend to use the net proceeds of this
offering for general corporate purposes, including the advancement of our drug candidates in clinical trials, regulatory submissions,
potential commercial activity, preclinical research and development, capital expenditures, and to meet working capital needs. For more
information, see “Use of Proceeds” on page 10. However, our management will have broad discretion in the application
of the net proceeds from this offering and could spend the proceeds in ways that do not improve our results of operations or enhance
the value of our common stock. You will not have the opportunity, as part of your investment decision, to assess whether these proceeds
are being used appropriately.
The
amount and timing of our actual expenditures will depend upon numerous factors, including the amount of cash generated by our operations,
the amount of competition and other operational factors. The costs and timing of development activities, particularly conducting clinical
trials and preclinical studies, are highly uncertain, subject to substantial risks and can often change. Depending on the outcome of
these activities and other unforeseen events, our plans and priorities may change, and we may apply the net proceeds of this offering
in different proportions than we currently anticipate.
Our
failure to apply these funds effectively could have a material adverse effect on our business, delay the further development of our product
candidates and cause the price of our common shares to decline.
The
failure by management to apply these funds effectively could result in financial losses that could have a material adverse effect on
our business, cause the price of our common stock to decline and delay the development of our product candidates.
Resales
of our common stock in the public market during this offering by our stockholders may cause the market price of our common stock to fall.
We
may issue shares of common stock from time to time in connection with this offering. The issuance from time to time of these new shares
of common stock, or our ability to issue new shares of common stock in this offering, could result in resales of our shares of common
stock by our current stockholders concerned about the potential dilution of their holdings. In turn, these resales could have the effect
of depressing the market price for our common stock.
Purchasers
in this offering will likely experience immediate and substantial dilution in the book value of their investment.
The
shares of common stock sold in this offering, if any, will be sold from time to time at various prices. However, the actual offering
price per share of common stock may be substantially higher than the as adjusted net tangible book value per share of common stock. Therefore,
if you purchase shares of our common stock in this offering, your interest will be diluted to the extent of the difference between the
price per share you pay and the net tangible book value per share of common stock. Assuming that the sale of an aggregate amount of $19,268,571
of shares of our common stock in this offering at an assumed offering price of $2.28 per share, which was the last reported sale
price of our common stock on the Nasdaq Capital Market on August 6, 2024, after deducting sales commissions and estimated offering expenses
payable by us, based on our net tangible book value as of March 31, 2024, if you purchase shares of common stock in this offering you
will suffer substantial and immediate dilution of $1.21 per share in the net tangible book value of the share common stock, representing
the difference between our as adjusted net tangible book value per share as of March 31, 2024, after giving effect to this offering and
the assumed offering price. The future exercise of outstanding options, warrants and certain convertible term loans will result in further
dilution of your investment. See the section entitled “Dilution” below for a more detailed discussion of the dilution you
will incur if you purchase shares of our common stock in this offering.
You
may experience future dilution as a result of future equity offerings.
To
raise additional capital, we may in the future issue additional shares of common stock or other securities convertible into or exchangeable
for shares of common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities
in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing
shares or other securities in the future could have rights superior to existing shareholders. The price per share at which we sell additional
shares of common stock, or securities convertible or exchangeable into shares of common stock, in future transactions may be higher or
lower than the price per share paid by investors in this offering.
Sales
of a substantial number of shares of our common stock, or the perception that such sales may occur, may adversely impact the price of
our common stock.
Almost
all of our 14,780,885 outstanding shares of common stock as of August 8, 2024, as well as a substantial number of shares of our common
stock underlying outstanding options and warrants, are available for sale in the public market, either pursuant to Rule 144 under the
Securities Act, or an effective registration statement. Pursuant to this shelf registration statement on Form S-3, we may sell up to
$19,268,571 of our equity securities over the next several years. Sales of a substantial number of shares of our common stock in the
public markets could depress the market price of our common stock and impair our ability to raise capital through the sale of additional
equity securities. We cannot predict the effect that future sales of our common stock would have on the market price of our common stock.
The
common stock offered hereby will be sold in “at-the-market” offerings, and investors who buy shares at different times will
likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share
sales made at prices lower than the prices they paid.
The
actual number of shares we will issue under the sales agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver placement notices
to Rodman & Renshaw at any time throughout the term of the sales agreement. The number of shares that are sold by Rodman & Renshaw
after delivering a placement notice will fluctuate based on the market price of the common stock during the sales period and limits we
set with Rodman & Renshaw. Because the price per share of each share sold will fluctuate based on the market price of our common
stock during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the information incorporated by reference in this prospectus contain “forward-looking statements” (as defined
in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act) that reflect our current expectations and views of future events. In some cases, you can identify forward-looking statements by
terms such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,”
“could,” “intend,” “target,” “project,” “contemplate,” “believe,”
“estimate,” “predict,” “potential”, or “continue” or the negative of these terms or other
similar expressions. In particular, statements about our pre-clinical and clinical trials and expectations regarding such trials, the
markets in which we operate, including growth of such markets, and our expectations, beliefs, plans, strategies, objectives, prospects,
assumptions, or future events or performance incorporated by reference in our filings generally under the headings “Risk Factors,”
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business”
are forward-looking statements.
We
have based these forward-looking statements on our current expectations, assumptions, estimates and projections. While we believe these
expectations, assumptions, estimates, and projections are reasonable, such forward-looking statements are only predictions and involve
known and unknown risks and uncertainties, many of which are beyond our control. These and other important factors, including those incorporated
by reference in this prospectus under the headings “Risk Factors,” “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and “Business,” may cause our actual results, performance, or achievements to
differ materially from any future results, performance or achievements expressed or implied by these forward-looking statements, or could
affect our share price. Important factors that could cause actual results or events to differ materially from those expressed in forward-looking
statements include, but are not limited to, the following:
| ● | our
ability to obtain and maintain regulatory approval of our product candidates; |
| ● | our
ability to successfully commercialize and market our product candidates, if approved; |
| ● | our
ability to contract with third-party suppliers, manufacturers and other service providers
and their ability to perform adequately; |
| ● | the
potential market size, opportunity, and growth potential for our product candidates, if approved; |
| ● | our
ability to obtain additional funding for our operations and development activities; |
| ● | the
accuracy of our estimates regarding expenses, capital requirements and needs for additional
financing; |
| ● | the
initiation, timing, progress and results of our pre-clinical studies and clinical trials,
and our research and development programs; |
| ● | the
timing of anticipated regulatory filings; |
| ● | the
timing of availability of data from our clinical trials; |
| ● | our
future expenses, capital requirements, need for additional financing, and the period over
which we believe that our existing cash and cash equivalents will be sufficient to fund our
operating expenses and capital expenditure requirements; |
| ● | our
ability to retain the continued service of our key professionals and to identify, hire and
retain additional qualified professionals; |
| ● | our
ability to advance product candidates into, and successfully complete, clinical trials; |
| ● | our
ability to recruit and enroll suitable patients in our clinical trials; |
| ● | the
timing or likelihood of the accomplishment of various scientific, clinical, regulatory, and
other product development objectives; |
| ● | the
pricing and reimbursement of our product candidates, if approved; |
| ● | the
rate and degree of market acceptance of our product candidates, if approved; |
| ● | the
implementation of our business model and strategic plans for our business, product candidates,
and technology; |
| ● | the
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates and technology; |
| ● | developments
relating to our competitors and our industry; |
| ● | our
ability to regain and maintain compliance with the listing standards of the Nasdaq Capital
Market; |
| ● | the
development of major public health concerns and the future impact of such concerns on our
clinical trials, business operations and funding requirements; and |
| ● | other
risks and factors listed under “Risk Factors” and elsewhere in this prospectus. |
You
should review carefully the section entitled “Risk Factors” beginning on page 5 of this prospectus for a discussion of
these and other risks that relate to our business and investing in our securities. The forward-looking statements contained or
incorporated by reference in this prospectus are expressly qualified in their entirety by this cautionary statement. Except as
required by applicable law, we do not undertake any obligation to publicly update any forward-looking statement contained in this
prospectus, the accompanying prospectus or the documents incorporated by reference herein to reflect events or circumstances after
the date on which any such statement is made or to reflect the occurrence of unanticipated events. For all forward-looking
statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995.
USE
OF PROCEEDS
We
may issue and sell shares of common stock having aggregate sales proceeds of up to $19,268,571 from time to time, before deducting
sales agent commissions and estimated offering expenses payable by us. The amount of proceeds from this offering, if any, will depend
upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance that we will
be able to sell any shares under or fully utilize the sales agreement with Rodman & Renshaw.
We
will retain broad discretion over the use of the net proceeds from this offering. We currently intend to use the net proceeds from the
sale of securities offered by this prospectus, if any, for general corporate purposes, including the advancement of our drug candidates
in clinical trials, regulatory submissions, potential commercial activity, preclinical research and development, capital expenditures,
and to meet working capital needs.
Investors
are cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of the proceeds of this offering. The amounts and timing of our actual expenditures
will depend upon numerous factors, including the amount of cash generated by our operations, the amount of competition and other operational
factors. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
From
time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing
allocation of resources, including the proceeds of this offering, is being optimized. Circumstances that may give rise to a change in
the use of proceeds include:
|
● |
a
change in development plan or strategy; |
|
|
|
|
● |
the
addition of new products or applications; |
|
|
|
|
● |
technical
delays; |
|
|
|
|
● |
delays
or difficulties with our clinical trials; |
|
|
|
|
● |
negative
results from our clinical trials; |
|
|
|
|
● |
difficulty
obtaining U.S. Food and Drug Administration approval; and |
|
|
|
|
● |
the
availability of other sources of cash including additional offerings, if any. |
Pending
other uses, we intend to invest the proceeds to us in investment-grade, interest-bearing securities such as money market funds, certificates
of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We cannot predict whether the proceeds invested
will yield a favorable, or any, return.
Dilution
If
you invest in our common stock, your interest will be diluted to the extent of the difference between the price per share you pay in
this offering and the net tangible book value per share of common stock immediately after this offering. The net tangible book value
of our common stock as of March 31, 2024, was approximately $3.157 million, or approximately $0.21 per share of common stock based on
14,780,885 shares of common stock outstanding on that date. “Net tangible book value” is total assets minus the sum of liabilities
and intangible assets. “Net tangible book value per share” is net tangible book value divided by the total number of shares
outstanding.
After
giving effect to the sale of our common stock in the aggregate amount of $19,268,571 in this offering at an assumed offering price
of $2.28 per share, the last reported sale price of our common stock on the Nasdaq Capital Market on August 6, 2024, and after deducting
the sales commissions and estimated offering expenses payable by us, our net tangible book value as of March 31, 2024, would have been
approximately $21.694 million, or approximately $1.07 per share of our common stock. This represents an immediate increase
in net tangible book value of $0.86 per share to our existing stockholders and an immediate dilution of approximately $1.21
per share to new investors participating in this offering, as illustrated by the following table:
Assumed
offering price per share of common stock | |
| | | |
$ | 2.28 | |
| |
| | | |
| | |
Net
tangible book value per share of common stock as of March 31, 2024 | |
$ | 0.21 | | |
| | |
| |
| | | |
| | |
Increase
in as adjusted net tangible book value per share of common stock attributable to the offering | |
$ | 0.86 | | |
| | |
| |
| | | |
| | |
As
adjusted net tangible book value per share of common stock as of March 31, 2024 after giving effect to this offering | |
| | | |
$ | 1.07 | |
| |
| | | |
| | |
Dilution
in net tangible book value per share of common stock to new investors in the offering | |
| | | |
$ | 1.21 | |
The
as adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold
and other terms of the offering determined at the time common stock is sold pursuant to this prospectus. The as adjusted information
assumes that all of our common stock in the aggregate amount of $19,268,571 is sold at the assumed offering price of $2.28 per share,
the last reported sale price of our common stock on the Nasdaq Capital Market on August 6, 2024. The shares sold in this offering, if
any, will be sold from time to time at various prices.
The
discussion and table above are based on 14,780,885 shares of common stock outstanding as of March 31, 2024, and excludes the following
potentially dilutive securities as of that date:
|
● |
1,788,334
shares of common stock issuable upon the exercise of stock options outstanding as of March 31, 2024, under our equity incentive plans,
with a weighted average exercise price of $3.46 per share; |
|
|
|
|
● |
211,666
shares of common stock available for future grants under our equity incentive plans as of March 31, 2024; and |
|
|
|
|
● |
1,763,570
shares of common stock issuable upon the exercise of warrants outstanding as of March 31, 2024, with a weighted average exercise
price of $3.88 per share. |
To
the extent that any of these options, awards or warrants are exercised, new options and awards are issued under our equity incentive
plans and subsequently exercised or we issue additional common shares or securities convertible into common shares in the future, there
may be further dilution to new investors participating in this offering.
DIVIDENDS
In
the past, we have not declared or paid cash dividends on our common stock, and we do not intend to pay any cash dividends on our common
stock. Rather, we intend to retain future earnings, if any, to fund the operation and expansion of our business and for general corporate
purposes.
PLAN
OF DISTRIBUTION
We
entered into the sales agreement with Rodman & Renshaw, pursuant to which such agreement and this prospectus and the accompanying
base prospectus, we may issue and sell from time to time shares of our common stock having an aggregate offering price of up to $19,268,571
through Rodman & Renshaw as our sales agent. Sales of the common stock, if any, will be made by any method permitted by law deemed
to be an “at-the-market offering” as defined in Rule 415 promulgated under the Securities Act, including sales made directly
on the Nasdaq Capital Market, the trading market for our common stock, or any other existing trading market in the United States for
our common stock, sales made to or through a market maker other than on an exchange.
If
we and Rodman & Renshaw agree on any method of distribution other than sales of shares of our common stock into the Nasdaq Capital
Market or another existing trading market in the United States at market prices, we will file a further prospectus supplement providing
all information about such offering as required by Rule 424(b) under the Securities Act.
Rodman
& Renshaw will offer our common stock at prevailing market prices subject to the terms and conditions of the sales agreement as agreed
upon by us and Rodman & Renshaw. We will designate the number of shares which we desire to sell, the time period during which sales
are requested to be made, any limitation on the number of shares that may be sold in one day and any minimum price below which sales
may not be made. Subject to the terms and conditions of the sales agreement, Rodman & Renshaw will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable law and regulations to sell on our behalf all of the shares
of common stock requested to be sold by us. We or Rodman & Renshaw may suspend the offering of the common stock being made through
Rodman & Renshaw under the sales agreement upon proper notice to the other party and pursuant to the terms of the sales agreement.
Settlement
for sales of common stock will occur on the first business day or such shorter settlement cycle as may be in effect under the Exchange
Act from time to time, following the date on which any sales are made, or on some other date that is agreed upon by us and Rodman &
Renshaw in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our common stock as contemplated
in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and Rodman &
Renshaw may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We
will pay Rodman & Renshaw a cash commission equal to up to 3.0% of the gross sales price per share of common stock issued by us and
sold by Rodman & Renshaw under the sales agreement. Because there is no minimum offering amount required as a condition to this offering,
the actual total offering amount, sales commissions and net proceeds to us, if any, are not determinable at this time. Pursuant to the
terms of the sales agreement, we have agreed to pay Rodman & Renshaw a fee not to exceed $30,000 for the reasonable fees and expenses
of its legal counsel (excluding any periodic due diligence fees) incurred in connection with entering into the transactions contemplated
by the sales agreement. Additionally, pursuant to the terms of the sales agreement, we have also agreed to reimburse Rodman & Renshaw
(i) $5,000 per due diligence update session conducted in connection with each such date we file our Annual Report on Form 10-K and (ii)
$2,500 per due diligence update session in connection with each such date we file our Quarterly Reports on Form 10-Q. We estimate that
the total expenses of the offering payable by us, excluding commissions payable to Rodman & Renshaw under the sales agreement, will
be approximately $150,000, assuming we sell the entire amount offered pursuant to this prospectus and the accompanying base prospectus.
We will disclose in our Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, the number of shares of our common
stock sold through Rodman & Renshaw under the sales agreement, the net proceeds to us and the compensation paid by us with respect
to sales under the sales agreement during the relevant quarter.
In
connection with the sales of common stock on our behalf, Rodman & Renshaw will be deemed to be an “underwriter” within
the meaning of the Securities Act, and the compensation paid to Rodman & Renshaw will be deemed to be underwriting commissions or
discounts. We have agreed in the sales agreement to provide indemnification and contribution to Rodman & Renshaw against certain
liabilities, including liabilities under the Securities Act.
The
offering of our shares of common stock pursuant to this prospectus will terminate upon the earlier of (a) the sale of the Shares pursuant
to this prospectus and the accompanying base prospectus having and aggregate sales price of $19,268,571, or (b) termination of the sales
agreement as permitted therein.
To
the extent required by Regulation M, Rodman & Renshaw will not engage in any market making activities involving our shares of common
stock while the offering is ongoing under this prospectus.
From
time to time, Rodman & Renshaw and its affiliates may provide in the future various advisory, investment and commercial banking and
other services to us and our affiliates in the ordinary course of business, for which they have received and may continue to receive
customary fees and commissions. In addition, in the ordinary course of its various business activities, Rodman & Renshaw and its
affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities)
and financial instruments (which may include bank loans) for their own account and for the accounts of their customers. Such investments
and securities activities may involve securities and/or instruments of ours or our affiliates. Rodman & Renshaw or its affiliates
may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial
instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
Except as disclosed in this prospectus, we have no present arrangements with Rodman & Renshaw for any further services.
This
summary of the material provisions of the sales agreement does not purport to be a complete statement of its terms and conditions. A
copy of the sales agreement is filed as an exhibit to the registration statement of which this prospectus forms a part.
This
prospectus and accompanying base prospectus in electronic format may be made available on a website maintained by Rodman & Renshaw
and Rodman & Renshaw may distribute this prospectus electronically.
American
Stock Transfer (also known as Equiniti) is the transfer agent and registrar for our common stock. The transfer agent’s address
is 6201 15th Avenue, Brooklyn, NY 11219.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by Pearl Cohen Zedek Latzer Baratz LLP, New York, New York.
Haynes and Boone, LLP, New York, New York, is acting as counsel for Rodman & Renshaw in connection with this offering.
EXPERTS
The
consolidated financial statements of MIRA Pharmaceuticals, Inc. as of December 31, 2023 and for the years then ended included in the
Annual Report on Form 10-K for the year ended December 31, 2023, have been incorporated by reference herein and in this prospectus in
reliance upon the report of Cherry Bekaert LLP (which report includes an explanatory paragraph regarding the existence of substantial
doubt about the Company’s ability to continue as a going concern), independent registered public accounting firm, incorporated
by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith file annual,
quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. The Securities and
Exchange Commission maintains a website that contains such reports, proxy and information statements and other information regarding
registrants that file electronically with the Securities and Exchange Commission. The address of the Securities and Exchange Commission’s
website is www.sec.gov.
We
make available free of charge on or through our website at www.mirapharmaceuticals.com, our Annual Reports on Form 10-K, Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with or otherwise
furnish it to the Securities and Exchange Commission.
We
have filed with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, as amended, relating
to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information
about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can
obtain a copy of the registration statement, at prescribed rates, from the Securities and Exchange Commission at the address listed above,
or for free at www.sec.gov. The registration statement and the documents referred to below under “Incorporation of Certain Information
By Reference” are also available on our website, www.mirapharmaceuticals.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (i) after the date of the Form S-3 with respect to securities offered by this prospectus and prior to the effectiveness
of such registration statement and (ii) after the date of this prospectus and before the end of the offering of the securities pursuant
to this prospectus:
| ● | Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC
on April 1, 2024; |
| | |
| ● | Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the
SEC on May 13, 2024; |
| | |
| ● | Our
Current Reports on Form 8-K filed with the SEC on January
17, 2024, March
7, 2024, March
13, 2024, May
29, 2024, June
28, 2024, July
12, 2024, July
19, 2024, July
24, 2024, August
8, 2024 and August 9, 2024; and |
| | |
| ● | The
description of our common stock in Exhibit 4.4 of our Form 10-K filed on April 1, 2024, including
any other amendment or report filed for the purpose of updating such description. |
Notwithstanding
the foregoing, documents or portions thereof containing information furnished under Items 2.02 and 7.01 of any Current Report on Form
8-K, including the related exhibits under Item 9.01, are not incorporated by reference in this prospectus.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed to
be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus or in
any other document incorporated by reference into this prospectus modifies or supersedes the earlier statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume
that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We
will provide you with a copy of any information that we incorporate by reference into this prospectus or the registration statement that
contains this prospectus, at no cost, by writing or calling us. Requests for such materials should be directed to:
MIRA
Pharmaceuticals, Inc.
Attention: Corporate Secretary
1200 Brickell Avenue, Suite 1950 #1183
Miami,
Florida 33131
Telephone number: (737) 289-0835
You
should not assume that the information in this prospectus or any prospectus supplement, as well as the information we file or previously
filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other
than the respective date of such documents. Our business, financial condition, results of operations and prospects may have changed since
that date.
Up
to $19,268,571
COMMON
STOCK
PROSPECTUS
Rodman
& Renshaw LLC
The
date of this prospectus is , 2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. |
Other
Expenses of Issuance and Distribution. |
The
fees and expenses payable by us in connection with this registration statement are estimated as follows:
Securities and Exchange Commission Registration Fee | |
$ | 14,760 | |
FINRA fee | |
$ | 15,500 | |
Accounting Fees and Expenses* | |
| | |
Legal Fees and Expenses* | |
| | |
Printing Fees and Expenses* | |
| | |
Transfer Agent Fees and Expenses* | |
| | |
Miscellaneous Fees and Expenses* | |
| - | |
Total | |
$ | 30,260 | |
*
To be provided in a prospectus supplement describing an offering of securities or a Current Report on Form 8-K that is incorporated by
reference herein.
Item
15. Indemnification of Directors and Officers.
Our
amended and restated articles of incorporation and bylaws provide that we shall indemnify any and all persons whom we shall have power
to indemnify under the FBCA to the fullest extent permitted by law.
Section
607.0831 of the FBCA, provides that a director is not personally liable for monetary damages to the corporation or any other person for
any statement, vote, decision to take or not to take action, or any failure to take any action, as a director, unless (1) the director
breached or failed to perform his or her duties as a director and (2) the director’s breach of, or failure to perform, those duties
constitutes (a) a violation of the criminal law, unless the director had reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe his or her conduct was unlawful, (b) a transaction from which the director derived an improper personal
benefit, either directly or indirectly, (c) a circumstance under which the liability provisions of Section 607.0834 of the FBCA are applicable,
(d) in a proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of a shareholder,
conscious disregard for the best interest of the corporation, or willful or intentional misconduct, or (e) in a proceeding by or in the
right of someone other than the corporation or a shareholder, recklessness or an act or omission which was committed in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. A judgment or other
final adjudication against a director in any criminal proceeding for a violation of the criminal law estops that director from contesting
the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law; but does not estop the director
from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe
that his or her conduct was unlawful.
Under
Section 607.0851 of the FBCA, a corporation has power to indemnify any person who is a party to any proceeding (other than an action
by, or in the right of the corporation), because he or she is or was a director or officer of the corporation against liability incurred
in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement or conviction
or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect
to any criminal action or proceeding, has reasonable cause to believe that his or her conduct was unlawful.
For
purposes of the indemnification provisions of the FBCA, “director” or “officer” means an individual who is or
was a director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at
the corporation’s request as a director or officer, manager, partner, trustee, employee, or agent of another domestic or foreign
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or another enterprise or entity and
the terms include, unless the context otherwise requires, the estate, heirs, executors, administrators, and personal representatives
of a director or officer.
In
addition, under Section 607.0851 of the FBCA, a corporation has the power to indemnify any person, who was or is a party to any proceeding
by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director or
officer, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense
of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding,
including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to
the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper.
Section
607.0852 of the FBCA provides that a corporation must indemnify an individual who is or was a director or officer who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the individual was a party because he or she is or was a director
or officer of the corporation against expenses incurred by the individual in connection with the proceeding.
Section
607.0853 of the FBCA provides that a corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse
expenses incurred in connection with the proceeding by an individual who is a party to the proceeding because that individual is or was
a director or an officer if the director or officer delivers to the corporation a signed written undertaking of the director or officer
to repay any funds advanced if (a) the director or officer is not entitled to mandatory indemnification under Section 607.0852; and (b)
it is ultimately determined under Section 607.0854 or Section 607.0855 (as described below) that the director or officer has not met
the relevant standard of conduct described in Section 607.0851 or the director or officer is not entitled to indemnification under Section
607.0859 (as described below).
Section
607.0854 of the FBCA provides that, unless the corporation’s articles of incorporation provide otherwise, notwithstanding the failure
of a corporation to provide indemnification, and despite any contrary determination of the board of directors or of the shareholders
in the specific case, a director or officer of the corporation who is a party to a proceeding because he or she is or was a director
or officer may apply for indemnification or an advance for expenses, or both, to a court having jurisdiction over the corporation which
is conducting the proceeding, or to a circuit court of competent jurisdiction. Our amended and restated articles of incorporation do
not provide any such exclusion. After receipt of an application and after giving any notice it considers necessary, the court may order
indemnification or advancement of expenses upon certain determinations of the court.
Section
607.0855 of the FBCA provides that, unless ordered by a court under Section 607.0854, a corporation may not indemnify a director or officer
under Section 607.0851 unless authorized for a specific proceeding after a determination has been made that indemnification is permissible
because the director or officer has met the relevant standard of conduct set forth in Section 607.0851.
Section
607.0857 of the FBCA also provides that a corporation shall have the power to purchase and maintain insurance on behalf of and for the
benefit of any person who is or was a director or officer of the corporation against any liability asserted against the person and incurred
by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power to
indemnify or advance expenses to the individual against such liability under the provisions of Section 607.0857.
Section
607.0858 of the FBCA provides that the indemnification provided pursuant to Section 607.0851 and Section 607.0852, and the advancement
of expenses provided pursuant to Section 607.0853, are not exclusive. A corporation may, by a provision in its articles of incorporation,
bylaws, or any agreement, or by vote of shareholders or disinterested directors, or otherwise, obligate itself in advance of the act
or omission giving rise to a proceeding to provide any other or further indemnification or advancement of expenses to any of its directors
or officers.
Section
607.0859 of the FBCA provides that, unless ordered by a court under the provisions of Section 607.0854 of the FBCA, a corporation may
not indemnify a director or officer under Section 607.0851 or Section 607.0858, or advance expenses to a director or officer under Section
607.0853 or Section 607.0858, if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and constitute: (a) willful or intentional misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding
by or in the right of a shareholder; (b) a transaction in which a director or officer derived an improper personal benefit; (c) a violation
of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; or (d) in the case of a director, a circumstance under which the liability provisions
of Section 607.0834 are applicable (relating to unlawful distributions).
These
provisions may have the practical effect in certain cases of eliminating the ability of shareholders to collect monetary damages from
our directors and officers. We believe that these provisions are necessary to attract and retain qualified persons to serve as our directors
and officers. There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for
which indemnification is sought.
Item
16. Exhibits.
* |
To
be filed, if necessary, by an amendment to the registration statement or incorporated by reference to a Current Report on Form 8-K
filed in connection with an underwritten offering of the shares offered hereunder. |
|
|
** |
Filed
herewith. |
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that for the purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding), is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Miami, on August 12, 2024.
|
MIRA
PHARMACEUTICALS, INC. |
|
|
|
|
By: |
/s/
Erez Aminov |
|
|
Erez
Aminov |
|
|
Chief
Executive Officer |
|
By: |
/s/
Michelle Yanez |
|
|
Michelle
Yanez |
|
|
Chief
Financial Officer |
Power
of Attorney
Each
person whose signature appears below hereby appoints Erez Aminov and Michelle Yanez, severally, acting alone and without the other, his
or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of each such
person, any and all amendments (including without limitation, post-effective amendments) to this registration statement on Form S-3,
to sign any and all additional registration statements relating to the same offering of securities as this registration statement that
are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file such registration statements with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply
with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems
appropriate.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Erez Aminov |
|
Chief
Executive Officer and Chairman of the Board of Directors |
|
August
12, 2024 |
Erez
Aminov |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Michelle Yanez |
|
Chief
Financial Officer |
|
August
12, 2024 |
Michelle
Yanez |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/
Michael Jerman |
|
Director |
|
August
12, 2024 |
Michael
Jerman |
|
|
|
|
|
|
|
|
|
/s/
Matthew Del Giudice |
|
Director |
|
August
12, 2024 |
Matthew
Del Giudice |
|
|
|
|
|
|
|
|
|
/s/
Denil Shekhat |
|
Director |
|
August
12, 2024 |
Denil
Shekhat |
|
|
|
|
|
|
|
|
|
/s/
Edward MacPherson |
|
Director |
|
August
12, 2024 |
Edward
MacPherson |
|
|
|
|
Exhibit
1.2
AT
THE MARKET OFFERING AGREEMENT
August
12, 2024
Rodman
& Renshaw LLC
600
Lexington Avenue, 32nd Floor
New
York, NY 10022
Ladies
and Gentlemen:
MIRA
Pharmaceuticals, Inc., a corporation organized under the laws of Florida (the “Company”), confirms its agreement (this
“Agreement”) with Rodman & Renshaw LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“Company
Florida Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Emerging
Growth Company” shall have the meaning ascribed to such term in Section 3(uu).
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“FDA”
shall have the meaning ascribed to such term in Section 3(jj).
“FDCA”
shall have the meaning ascribed to such term in Section 3(jj).
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3(qq).
“FINRA”
shall have the meaning ascribed to such term in Section 3(e).
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3(s).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Indebtedness”
shall have the meaning ascribed to such term in Section 3(ee).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3(mm).
“Liens”
shall have the meaning ascribed to such term in Section 3(a).
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Maximum
Amount” shall have the meaning ascribed to such term in Section 2.
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3(rr).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Person”
shall have the meaning ascribed to such term in Section 3(e).
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3(jj).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement in the Registration Statement at the Effective Time and
any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares contained in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $100,000,000 of securities of the Company to
be filed on or immediately following the Execution Time, including exhibits and financial statements filed with or incorporated by reference
into such registration statement and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any
post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in or
otherwise deemed under the Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of
any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include, without limitation, the filing of any Incorporated Document to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any specified date.
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the
“Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”), that
does not exceed (a) the number or dollar amount of shares of Common Stock registered on the Registration Statement, pursuant to which
the offering is being made, (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), or (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering
of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 2
on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the Company
and that the Manager shall have no obligation in connection with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following
the effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through the Manager,
acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on
the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is a
Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the
maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by the Manager under this Section 2(b)
on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Company or any other Person if it does not sell the Shares for any reason other
than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase
Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company pursuant
to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of up to 3.0% of the gross sales
price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not
apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon
at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on the
Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such day,
the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with
respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the first (1st) Trading Day or any other settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange
Act from time to time) following the date on which such sales are made (each, a “Settlement Date”). On or before the
Trading Day prior to each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Shares
being sold by crediting the Manager’s or its designee’s account (provided that the Manager shall have given the Company written
notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”)
through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties
hereto which Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company agrees
that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a Settlement
Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the Manager
harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Manager any commission, discount or
other compensation to which the Manager would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive
the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant
to a Sales Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record
Date shall be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of
Shares on the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the
Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after
giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Board,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price
authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to
the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Shares sold
pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of its intent to sell
any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and
the Effective Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant
to this Agreement, as set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are
set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If
the Company has no subsidiaries, all other references to the Subsidiaries or any of them in this Agreement (and in all documentation
contemplated hereby or to be delivered pursuant hereto), shall be disregarded, and all provisions containing such references in this
Agreement or such other documentation shall be read, mutatis mutandis, to omit such references as appropriate.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as 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,
including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than
(i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of notices
and/or application(s) to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner
required thereby, and (iv) such filings as are required to be made under applicable state securities laws and the rules and regulations
of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. On and after the Effective
Time, the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable
by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such a purchaser).
The Shares are being issued pursuant to the Registration Statement and the issuance of the Shares has been registered by the Company
under the Act on and after the Effective Time. The “Plan of Distribution” section within the Registration Statement
permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares
will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee equity awards under
the Company’s employee equity award plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
employee equity award plans and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into
Common Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under
the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person.
There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion,
exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no
outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security
of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval
or authorization of any stockholder, the Board or others is required for the issuance and sale of the Shares. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h)
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and will file, on
or immediately following the Execution Time, with the Commission the Registration Statement, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Shares. Upon the Effective Time, the Registration Statement shall be effective
and available for the offer and sale of the Shares as of the date hereof. When filed, the Base Prospectus contains all information required
by the Act and the rules thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Manager prior to the Execution Time or prior to any such time this representation is
repeated or deemed to be made. The Registration Statement, when filed on or immediately following the Execution Time, each such time
this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares,
meets the requirements set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements as set forth in General Instruction
I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction I.B.6 of Form S-3 with respect to the aggregate market value
of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed
with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, 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 Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each
such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this
clause (ii)), 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.
(k)
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit 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. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company
is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use or refer to, any Issuer
Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material
respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. No other financial
statements or supporting schedules are required to be included in the Registration Statement, the Base Prospectus, any Prospectus Supplement
or the Prospectus. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(n)
Statistical and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement
or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate.
To the extent required, the Company has obtained the written consent for the use of such data from such sources.
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as 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 144 under the Act), except pursuant to existing Company equity award plans, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares 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 Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(v)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date
of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having
valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable
to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including equity award agreements under any equity award plan of the Company.
(y)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
“Evaluation Date”) and the disclosure controls and procedures are effective in all material respects to perform the
functions for which they were established. The Company presented in its most recently filed periodic report under the Exchange Act the
conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as
of the Evaluation Date. Since the Evaluation Date, there have been no significant deficiencies or material weaknesses in the Company’s
internal control over financial reporting (whether or not remediated) and 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. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(bb)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares, will
not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(cc)
Listing and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant to Section
12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that
the Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Company has not, in the twelve
(12) months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted
to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. Except as set
forth in the SEC Reports, the Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through
DTC or another established clearing corporation and the Company is current in payment of the fees to DTC (or such other established clearing
corporation) in connection with such electronic transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Shares.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file
for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means
(x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. Each of the Company’s accounting firms is set forth in the SEC Reports. To the knowledge and belief of the
Company, each such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and the rules of the Public
Company Accounting Oversight Board (“PCAOB”), (ii) has expressed its opinion with respect to the financial statements
included in the Company’s Annual Report for the fiscal year ending December 31, 2023 and shall express its opinion with respect
to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2024, (iii) is
in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the
Act and (iv) a registered public accounting firm as defined by PCAOB whose registration has not been suspended or revoked and who has
not requested such registration to be withdrawn.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of
the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure
to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United
States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk)
ERISA Compliance. Except as otherwise disclosed in the Registration Statement and the Prospectus, 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 their “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA
Affiliate” means, with respect to the Company or any of its Subsidiaries, 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 such 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, its Subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established or
maintained by the Company, its Subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated,
would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its Subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any 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, its subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would
cause the loss of such qualification.
(ll)
Equity Award Plans. Each equity award granted by the Company under the Company’s equity award plan was granted (i) in accordance
with the terms of the Company’s equity award plan and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such equity award would be considered granted under GAAP and applicable law. No equity award granted under the
Company’s equity award plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, equity awards prior to, or otherwise knowingly coordinate the grant of equity award with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(mm)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any
Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii)
the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(nn)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the past three years were,
in compliance with all applicable data privacy and security laws and regulations, including, as applicable, the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Company
and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal
Data (the “Policies”); (iii) the Company provides accurate notice of its applicable Policies to its customers, employees,
third party vendors and representatives as required by Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice
of the Company’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the
Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s
name, street address, telephone number, email address, photograph, social security number, bank information, or customer or account number;
(ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of information that allows the identification
of such natural person, or his or her family, or permits the collection or analysis of any identifiable data related to an identified
person’s health or sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate,
misleading, or deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of this Agreement will not
result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, (i) has, to the knowledge of the Company,
received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential violation
by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii)
is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed
any obligation or liability under any Privacy Law.
(oo)
Office of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of
the directors, officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authority (collectively, the “Sanctions”), nor (ii) located, organized or resident in a country or territory
that is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the
transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other Person: (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the
time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result in a violation of Sanctions
by any Person (including any Person participating in the transactions contemplated hereby, whether as underwriter, advisor, investor
or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly
engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(pp)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(qq)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(rr)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(ss)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
(tt)
Forward-Looking Statements. Each financial or operational projection or other “forward-looking statement” (as defined
by Section 27A of the Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was so included
by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates
and other applicable facts and circumstances and (ii) as required, is accompanied by meaningful cautionary statements identifying those
factors that could cause actual results to differ materially from those in such forward-looking statement. No such statement was made
that was false or misleading with the knowledge of a director or senior manager of the Company that it was false or misleading.
(uu)
Emerging Growth Company. The Company has been and is an “emerging growth company” as
defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).
4.
Agreements. The Company agrees with the Manager that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects. The Company has properly completed the Prospectus, in a form approved by the Manager, and filed such
Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by the Execution
Time and will cause any supplement to the Prospectus filed after the Effective Time to be properly completed, in a form approved by the
Manager, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed thereby and will provide evidence reasonably satisfactory to the Manager of such timely filing. The Company will promptly
advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172,
173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration
Statement shall have been filed or become effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any
supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order
or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as
a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus
may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement
or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus,
the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii)
use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such
quantities as the Manager may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager
an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the
Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as
the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the
offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of
such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager,
and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered
shall not apply during such three (3) Business Days) for at least three (3) Business Days prior to any date on which the Company or any
Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares
of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided
that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee equity plan,
stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or at the time of the respective Sales
Notice and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the
Execution Time or at the time of the respective Sales Notice.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact
that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty
(30) Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its
quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial
information (other than information that is furnished and not filed), if the Manager reasonably determines that the information in such
Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement
(such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained
in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the Representation
Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate.
(l)
Bring Down Opinions; Negative Assurance. At each Representation Date, unless waived by the Manager, the Company shall furnish
or cause to be furnished forthwith to the Manager and to counsel to the Manager (i) a written opinion of Florida counsel to the (“Company
Florida Counsel”) and (ii) and a written opinion of corporate counsel to the Company (“Company Counsel”)
addressed to the Manager and dated and delivered on such Representation Date, in form and substance reasonably satisfactory to the Manager,
including a negative assurance representation.
(m)
Auditor Bring Down “Comfort” Letter. At each Representation Date, unless waived by the Manager, the Company shall
cause (1) the Company’s auditors or other independent accountants satisfactory to the Manager (the “Accountants”),
to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to furnish the Manager a certificate, in
each case dated on such Representation Date, in form satisfactory to the Manager, of the same tenor as the letters and certificate referred
to in Section 6 of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letters and certificate.
(n)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory
to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable
due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated
by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers
and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager
for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $5,000 and $2,500 per update for
which the Company is obligated to deliver a certification pursuant to clause (ii) of Section 4(k) and clause (iii) of Section 4(k), respectively,
for which no waiver is applicable, plus any incidental expense incurred by the Manager in connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own account
and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as
applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of
the applicable Settlement Date, the Company will offer to any Person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and
each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(s)
Reservation of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide for the
issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held in
treasury, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The
Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain
such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
the Company 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 the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
Except for the Broker Fee, the Company shall not use the Net Proceeds from the sale of the Shares to be paid to any FINRA member, any
person associated with a FINRA member or any affiliate of a FINRA member.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of Common
Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable.
After the effectiveness of any such registration statement, all references to “Registration Statement” included in
this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein
pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed
to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.
(y)
Emerging Growth Company. The Company will promptly notify the Manager if the Company ceases to be an Emerging Growth Company at any time
prior to the later of (i) the sale of all Shares provided for in the Prospectus and (ii) the termination of this Agreement in accordance
with Section 8 herein.
5.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange
Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer
and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel
for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of
the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the
filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $30,000 (excluding
any periodic due diligence fees provided for under Section 4(n)), which shall be subject to the maximum set forth in Section 4(n)),which
shall be paid upon the Execution Time; and (xi) all other costs and expenses incident to the performance by the Company of its obligations
hereunder.
6.
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall
be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company
of its obligations hereunder and (iii) the following additional conditions:
(a)
Effectiveness of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared
effective by the Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement filed after the Effective Time shall have been filed in the manner required by Rule 424(b) within the time period required
hereunder and under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have
been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending
the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b)
Delivery of Opinion. The Company shall have caused (i) the Company Counsel to furnish to the Manager its opinion and negative
assurance statement and (ii) the Company Florida Counsel to furnish to the Manager its opinion, in each case, dated as of such date and
addressed to the Manager in form and substance acceptable to the Manager.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have
furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and
substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of
any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the
Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in
previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager,
so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated
by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment
or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period
required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market,
and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager
such further information, certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by electronic mail.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Haynes and Boone, LLP, counsel for the Manager,
at 30 Rockefeller Center, 26th Floor, New York, New York 10112, email: rick.werner@haynesboone.com, on each such date as provided
in this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in
the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or arise out of or are based upon any Proceeding, commenced or threatened
(whether or not the Manager is a target of or party to such Proceeding) or result from or relate to any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b)
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating
to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager
shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee
and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business Days’ prior written
notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any pending sale,
through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall remain
in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence
of 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination. For the sixty (60) days following
the termination of this Agreement by the Company, the Company shall not enter into and/or issue of shares of Common Stock in an “at-the-market”
facility with any other agent as sales agent.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of
this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or (b)
above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed
to provide that Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 shall remain in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of
the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed
to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right
or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it
may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in connection
with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim
that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company,
in connection with such transaction or the process leading thereto.
13.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral)
between the Company and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter
agreement, dated August 6, 2024, by and between the Company and the Manager shall continue to be effective and the terms therein shall
continue to survive and be enforceable by the Manager in accordance with its terms, provided that, in the event of a conflict between
the terms of the letter agreement and this Agreement, the terms of this Agreement shall prevail.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
15.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State
of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which
it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive jurisdiction
of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail
to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every
respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company 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, any Terms Agreement or the transactions contemplated
hereby or thereby.
17.
Counterparts. This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered
via electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
***************************
18.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the
construction hereof.
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
Very
truly yours,
MIRA PHARMACEUTICALS,
INC. |
|
|
|
|
By: |
/s/
Erez Aminov |
|
Name: |
Erez Aminov |
|
Title: |
Chief Executive Officer |
|
Address
for Notice:
1200
Brickell Avenue
Suite
1950 #1183
Miami,
Florida 33131
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
RODMAN
& RENSHAW LLC
By: |
/s/ David Dinkin |
|
Name: |
David Dinkin |
|
Title: |
President |
|
Address
for Notice:
Rodman
& Renshaw LLC
600
Lexington Avenue, 32nd Floor
New
York, NY 10022
Form
of Terms Agreement
ANNEX
I
MIRA
PHARMACEUTICALS, INC.
TERMS
AGREEMENT
Dear
Sirs:
MIRA
Pharmaceuticals, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The
Market Offering Agreement, dated August 12, 2024 (the “At The Market Offering Agreement”), between the Company and Rodman
& Renshaw LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto
(the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the
Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the
Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
MIRA PHARMACEUTICALS,
INC. |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
ACCEPTED
as of the date first written above.
RODMAN & RENSHAW LLC |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
Exhibit 5.1
August
12, 2024
MIRA
Pharmaceuticals, Inc.
1200 Brickell Avenue, Suite 1950 #1183
Miami,
Florida 33131
Re:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to MIRA Pharmaceuticals, Inc., a Florida corporation (the “Company”), in connection with
the filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Act”) of a registration statement on Form S-3 (the “Registration Statement”)
by the Company relating to (a) shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”),
(b) shares of preferred stock, par value $0.0001 per share, of the Company (the “Preferred Stock”), (c) warrants
to purchase Common Stock or Preferred Stock (the “Warrants”), and (d) units consisting of any combination of
Common Stock, Preferred Stock or Warrants (the “Units” and, together with the Common Stock, the Preferred Stock,
and the Warrants, the “Securities” and each individually, a “Security”) that may
be issued and sold from time to time pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed $100,000,000.
We
also have acted as counsel to the Company in connection with an offering of up to $19,268,571 of shares of Common Stock that may be issued
and sold (the “Sales Agreement Shares”) under an At The Market Offering Agreement executed by the Company and
Rodman & Renshaw LLC on August 12, 2024 (the “Sales Agreement”). The prospectus for the offer and sale
of the Sales Agreement Shares is included in the Registration Statement.
For
purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Third
Amended and Restated Articles of Incorporation of the Company, dated June 28, 2023, and the Amended and Restated Bylaws of the Company,
effective June 26, 2023 (the “Company Charter Documents”); (ii) the base prospectus for the offer and sale
of the Securities (as may be amended or supplement, the “Base Prospectus”); (iii) the specimen Common Stock
certificate of the Company, (iv) the Sales Agreement, and (v) such other corporate records of the Company as we have deemed necessary
or appropriate for purposes of the opinions hereafter expressed. In addition, we have reviewed certain certificates of officers of the
Company and of public officials, and we have relied on such certificates with respect to certain factual matters that we have not independently
established.
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
With
respect to the Securities, we have also assumed that (i) the Company will continue to be incorporated and in existence and good standing
in its jurisdiction of organization, (ii) the Registration Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (iii) no stop order of the Commission preventing or suspending the use of the Base Prospectus contained in
the Registration Statement or any prospectus supplement will have been issued; (iv) a prospectus supplement will have been prepared and
filed with the Commission properly describing the Securities offered thereby and will have been delivered to the purchaser(s) of the
Securities as required in accordance with applicable law; (v) all Securities will be offered, issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the Registration Statement and the appropriate prospectus supplement; (vi)
a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly
executed and delivered by the Company and the other parties thereto and will be an enforceable obligation of the parties thereto; (vii)
in connection with the sale of Warrants, any required warrant agreement or agreement relating to the Warrants (a “Warrant
Agreement”) will have been executed and delivered by all applicable parties and will be enforceable in all respects in
accordance with its terms; (viii) in connection with the sale of Units, any required unit agreement or agreement relating to the Units
(a “Unit Agreement”) will have been executed and delivered by all applicable parties and will be enforceable
in all respects in accordance with its terms; (ix) with respect to shares of Common Stock, Preferred Stock, there will be sufficient
shares of Common Stock or Preferred Stock authorized under the Charter Documents and not otherwise reserved for issuance.
Based
on the foregoing, and subject to the limitations and qualifications set forth herein, and assuming that for purposes of the opinion that
Florida law is the same as New York law, we are of the opinion that:
|
1. |
With
respect to shares of Common Stock, when (i) the Board of Directors of the Company or, to the extent permitted by the Florida Business
Corporation Act (the “FBCA”) and the Charter Documents, a duly constituted and acting committee thereof
(such Board of Directors or committee being hereinafter referred to as the “Company Board”) has taken all
necessary corporate action to approve the issuance thereof and the terms of the offering of shares of Common Stock and related matters,
and (ii) certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered, or
if uncertificated, valid book-entry notations have been made in the share register of the Company, in each case in accordance with
the provisions of the Charter Documents, either (a) in accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Company Board and upon payment of the consideration therefor (which shall not be less than the par value
of the Common Stock) provided for therein, all in accordance with the Registration Statement and any applicable prospectus supplement,
or (b) upon conversion, exchange, redemption or exercise of any other Security, in accordance with the terms of such Security or
the instrument governing such Security providing for such conversion, exchange, redemption or exercise as approved by the Company
Board, and for the consideration approved by the Company Board (which shall not be less than the par value of the Common Stock),
all in accordance with the Registration Statement and any applicable prospectus supplement, the shares of Common Stock will be validly
issued, fully paid and non-assessable. The Common Stock covered in the opinion in this paragraph includes any shares of Common Stock
that may be issued upon exercise, conversion or exchange pursuant to the terms of any other Securities but does not include the Sales
Agreement Shares. |
|
2. |
With
respect to shares of Preferred Stock, when (i) the Company Board has taken all necessary corporate action to approve and establish
the terms of the shares of Preferred Stock, to approve the issuance thereof and the terms of the offering thereof and related matters,
including the adoption of a Certificate of Designations relating to such Preferred Stock (a “Certificate of Designations”),
and such Certificate of Designations has been filed with the Secretary of State of the State of Florida, and (ii) certificates representing
the shares of Preferred Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry
notations have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents,
either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board
and upon payment of the consideration therefor (which shall not be less than the par value of the Preferred Stock) provided for therein,
all in accordance with the Registration Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing
for such conversion, exchange, redemption or exercise as approved by the Company Board, and for the consideration approved by the
Company Board (which shall not be less than the par value of the Preferred Stock), all in accordance with the Registration Statement
and any applicable prospectus supplement, the shares of Preferred Stock will be validly issued, fully paid and non-assessable. |
|
3. |
With
respect to the Warrants, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Warrants, the terms of the offering thereof and related matters, (ii) the Warrant Agreements and Warrants have been
duly prepared, authorized and validly executed and delivered by the Company and the other parties thereto (if any) in compliance
with all applicable laws and (iii) the Warrants or certificates representing the Warrants have been duly registered and delivered
in accordance with the appropriate Warrant Agreements and the applicable definitive purchase, underwriting or similar agreement approved
by the Company Board and upon payment of the consideration therefor provided for therein (which shall not be less than the par value
of any Common Stock or Preferred Stock underlying such Warrants), all in accordance with the Registration Statement and any prospectus
supplement, the Warrants will constitute valid and legally binding obligations of the Company. |
|
4. |
With
respect to the Units, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Units, the terms of the offering thereof and related matters, (ii) such Units and any Unit Agreement or agreements
establishing such Units and the rights of the holders thereof have been duly authorized and prepared and validly executed and delivered
by the Company and each other party thereto in compliance with applicable laws and (iii) such Units have been delivered in accordance
with the applicable duly authorized definitive purchase, underwriting or similar agreement approved by the Company Board and upon
payment of the consideration therefor provided for therein, the Units will constitute valid and legally binding obligations of the
Company. |
|
5. |
The
Sales Agreement Shares are duly authorized and, when such shares have been issued and delivered against payment of the purchase price
therefor (in an amount in excess of the par value thereof) in accordance with the Sales Agreement, and as contemplated by the Registration
Statement, the Sales Agreement Shares will be validly issued, fully paid and nonassessable. |
The
opinions set forth above are subject to the following qualifications, limitations and exceptions:
|
a. |
The
opinions are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation,
conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii)
provisions of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the
fact that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought. |
|
b. |
The
opinions are subject to the effect of (i) general principles of equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing, general matters of public policy and other similar doctrines generally affecting the enforceability
of agreements (regardless of whether considered in a proceeding in equity or at law) (ii) obligations of good faith and fair dealing
under New York law and (iii) other commonly-recognized statutory and judicial constraints on enforceability, including statutes of
limitation, limitations on rights to indemnification that contravene law or public policy and the effectiveness of waivers of rights
or benefits that cannot be effectively waived under applicable law. |
|
c. |
In
rendering the opinions, we have assumed that, at the time of the sale of the Securities, (i) the resolutions of the Board of Directors
or similar governing body, as reflected in the minutes and proceedings of the Company, will not have been modified or rescinded and
(ii) there will not have occurred any change in the laws affecting the authorization, execution, delivery, issuance, sale, ranking,
validity or enforceability of the Securities. |
The
opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions
expressed herein, (i) the FBCA and (ii) the laws of the State of New York, in each case as in effect on the date hereof (all of the foregoing
being referred to as the “Opined-on Law”). We do not express any opinion with respect to any other laws, or
the laws of any other jurisdiction (including, without limitation, any laws of any other jurisdiction which might be referenced by the
choice-of-law rules of the Opined-on Law), other than the Opined-on Law or as to the effect of any such other laws on the opinions herein
stated.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm contained
therein under the heading “Legal Matters.” In giving this consent, we do not hereby admit we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very
truly yours, |
|
//s//
Pearl Cohen Zedek Latzer Baratz LLP |
|
Pearl
Cohen Zedek Latzer Baratz LLP |
|
Exhibit
23.1
Consent
of Independent Accountants
We
hereby consent to the incorporation by reference in this Registration Statement of MIRA Pharmaceuticals, Inc., of our report dated
April 1, 2024, with respect to our audits of the financial statements of MIRA Pharmaceuticals, Inc. as of December 31, 2023 and 2022
and for each of the years in the two-year period ended December 31, 2023. Our report includes an explanatory paragraph about the existence
of substantial doubt concerning the Company’s ability to continue as a going concern. We also consent to the reference to
us under the heading “Experts” in this Registration Statement.
/s/
Cherry Bekaert LLP
Tampa,
Florida
August
12, 2024
Exhibit
107
Calculation of Filing Fee Tables
Form
S-3
(Form
Type)
MIRA
Pharmaceuticals, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry-Forward Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
Rule |
|
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price
Per Unit |
|
|
Maximum
Aggregate
Offering
Price (1)(2) |
|
|
Fee
Rate |
|
|
Amount of
Registration
Fee |
|
|
Carry
Forward
Form
Type |
|
|
Carry
Forward
File
Number |
|
|
Carry
Forward
Initial
Effective
Date |
|
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
|
Newly Registered Securities |
|
Fees to be Paid |
|
Equity |
|
Common stock, par value $0.0001 per share |
|
|
457(o) |
|
|
|
(3 |
) |
|
|
(3 |
) |
|
|
(3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
Preferred stock, par value $0.0001 per share |
|
|
457(o) |
|
|
|
(3 |
) |
|
|
(3 |
) |
|
|
(3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Warrants |
|
|
457(o) |
|
|
|
(3 |
) |
|
|
(3 |
) |
|
|
(3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Units |
|
|
457(o) |
|
|
|
(3 |
) |
|
|
(3 |
) |
|
|
(3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated (Universal) Shelf |
|
|
|
|
457(o) |
|
|
|
(3 |
) |
|
|
(3 |
) |
|
|
$100,000,000.00 (5 |
) |
|
|
0.00014760 |
|
|
$ |
11,070.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Carry Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amount |
|
|
|
|
|
|
$ |
100,000,000 |
|
|
|
0.00014760 |
|
|
$ |
14,760 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
14,760 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Pursuant
to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
shall also cover any additional shares of common stock of MIRA Pharmaceuticals, Inc. (the “Registrant”) that become issuable
with respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other
transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding
shares of Registrant’s common stock. |
|
|
(2) |
Estimated
solely for the purpose of calculating the amount of the registration fee in pursuant to Rule 457(o) under the Securities Act. |
(3) |
An
indeterminate number or aggregate principal amount, as applicable, of securities of each identified class is being registered as
may from time to time be offered on a primary basis at indeterminate prices, including an indeterminate number or amount of securities
that may be issued upon the exercise, settlement, exchange or conversion of securities offered hereunder, which together shall have
an aggregate initial offering price not to exceed $100,000,000. Separate consideration may or may not be received for securities
that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. |
|
|
(4) |
Estimated
solely for purposes of calculating the registration fee. Subject to Rule 462(b) under the Securities Act, the aggregate initial offering
price of all securities issued by the Registrant pursuant to the unallocated universal shelf base prospectus (inclusive of any shares
of common stock of the Registrant issued pursuant to the sales agreement prospectus) will not exceed $100,000,000. |
|
|
(5) |
Represents
the total of the fee offsets claimed pursuant to Rule 457(p) under the Securities Act for the portion of registration fee previously
paid with respect to unsold securities, as set forth in Table 2. The Registrant has terminated the offerings related to the unsold
securities associated with the claimed offset. |
Table
2: Fee Offset Claims and Sources
N/A
MIRA Pharmaceuticals (NASDAQ:MIRA)
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MIRA Pharmaceuticals (NASDAQ:MIRA)
過去 株価チャート
から 11 2023 まで 11 2024