Exhibit 1.1
UNDERWRITING AGREEMENT
between
SEELOS THERAPEUTICS, INC.
and
TITAN
PARTNERS GROUP LLC, A DIVISION OF AMERICAN CAPITAL PARTNERS, LLC
as Representative of the Several Underwriters
SEELOS THERAPEUTICS, INC.
UNDERWRITING AGREEMENT
New York, New York
November 28, 2023
Titan Partners Group, LLC, a division of American Capital Partners,
LLC
As Representative of the several Underwriters named on Schedule 1 attached hereto
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
New York, NY 10007
Ladies and Gentlemen:
The undersigned, Seelos Therapeutics, Inc.,
a corporation formed under the laws of the State of Nevada (collectively with its subsidiaries and affiliates, including, without limitation,
all entities disclosed or described in the Registration Statement (as hereinafter defined) as being subsidiaries or affiliates of Seelos
Therapeutics, Inc. the “Company”), hereby confirms its agreement (this “Agreement”) with Titan
Partners Group, LLC, a division of American Capital Partners, LLC (hereinafter referred to as “you” (including its
correlatives) or the “Representative”), and with the other underwriters named on Schedule 1 hereto for which
the Representative is acting as representative (the Representative and such other underwriters being collectively called the “Underwriters”
or, individually, an “Underwriter”) as follows:
1. Purchase
and Sale of Securities.
1.1 Firm
Securities.
1.1.1 Nature
and Purchase of Securities.
(i) On
the basis of the representations and warranties contained herein, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, an aggregate of 1,781,934 shares (the “Firm Shares”) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”), pre-funded warrants to purchase up to 2,422,612 shares
of Common Stock at an exercise price of $0.001 per share in the form of Exhibit A attached hereto (the “Pre-funded
Warrants”), and common stock warrants to purchase up to 4,204,546 shares of Common Stock at an exercise price of $1.32 per share
in the form of Exhibit B attached hereto (the “Common Warrants” and together with the Pre-funded Warrants
and Firm Shares, the “Firm Securities”). Each Firm Share and each Pre-funded Warrant is being sold together with a
Common Warrant to purchase one (1) share of Common Stock. The offering and sale of the Firm Securities is hereinafter referred to
as the “Offering.” The shares of Common Stock issuable upon the exercise of the Pre-funded Warrants are hereinafter
referred to as the “Pre-funded Warrant Shares” and the shares of Common Stock issuable upon the exercise of the Common
Warrants are hereinafter referred to as the “Common Warrant Shares.”
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Securities set forth opposite their respective
names on Schedule 1 attached hereto and made a part hereof at a purchase price of $1.2276 per Firm Share and accompanying Common
Warrant to purchase one (1) share of Common Stock (93% of the public offering price per Firm Share and accompanying Common Warrant)
and $1.2267 per Pre-funded Warrant and accompanying Common Warrant (93% of the public offering price per Pre-funded Warrant and accompanying
Common Warrant). The Firm Securities are to be offered initially to the public at the offering prices set forth on the cover page of
the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2 Payment
and Delivery.
(i) Delivery
and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day (as defined
below) following the date of the Prospectus (as defined below) (the “Effective Date”) or the third (3rd)
Business Day following the date of the Prospectus if the pricing for the Offering (as defined in Section 1.2.1 below) occurs after
4:01 p.m., Eastern time on the Effective Date, or at such earlier time as shall be agreed upon by the Representative and the Company,
remotely by electronic transmission, or at such other place as shall be agreed upon by the Representative and the Company. The hour and
date of delivery and payment for the Firm Securities is called the “Closing Date.”
(ii) Payment
for the Firm Securities shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company
upon delivery of the Firm Shares (through the facilities of the Depository Trust Company (“DTC”)) to the account of
the Representative. The Firm Shares shall be registered in such name or names and in such authorized denominations as the Representative
may request in writing at least two (2) full Business Days prior to the Closing Date. The Company shall not be obligated to sell
or deliver the Firm Shares except upon tender of payment by the Representative for all of the Firm Shares. The term “Business
Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which commercial banking institutions are
authorized or obligated by law to close in New York, New York.
(iii) The
Pre-funded Warrants and Common Warrants shall be delivered to the purchasers thereof in definitive form, registered in such names and
in such denominations as the Representative shall request in writing prior to the Closing Date. The Company shall deliver such Pre-funded
Warrants and Common Warrants on the Closing Date in definitive form in such names and amounts as provided by the Representative to the
Company prior to the Closing Date against payment of funds as provided in the first sentence of Section 1.1.2(ii) and subsequently
mail to the addresses provided by the Representative to the Company prior to the Closing Date.
2. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined below),
as of the Closing Date as follows:
2.1 Filing
of Registration Statement.
2.1.1 Pursuant
to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-251356) including any related prospectus or prospectuses, for the registration
of certain securities of the Company, including the Firm Securities, for sale from time to time under the Securities Act of 1933, as amended
(the “Securities Act”), which registration statement, including any amendment or amendments thereto, was prepared by
the Company in all material respects in conformity with the requirements of the Securities Act and the rules and regulations of the
Commission under the Securities Act (the “Securities Act Regulations”) and contains and will contain all material statements
that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except as the context
may otherwise require, such registration statement, as amended, on file with the Commission at any given time, including any amendments
thereto, and the exhibits, schedules and all other documents filed as a part thereof or incorporated therein by reference and all information
otherwise deemed to be a part thereof or included therein pursuant to Rule 430B of the Securities Act (the “Rule 430B
Information”) or otherwise pursuant to the Securities Act Regulations at such time, is referred to herein as the “Registration
Statement.” If the Company files any registration statement pursuant to Rule 462(b) under the Securities Act, then
after such filing, the term “Registration Statement” shall include such registration statement filed pursuant to Rule 462(b).
The Registration Statement was declared effective by the Commission on December 23, 2020.
The base prospectus contained
in the Registration Statement at the date and time that this Agreement is executed and delivered by the parties hereto is herein called
the “Base Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the Base Prospectus
as so supplemented) that described the Firm Securities and the Offering and omitted the Rule 430B Information and that was used prior
to the filing of the Prospectus (as defined below) is herein called a “Preliminary Prospectus.”
Promptly after the execution
and delivery of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement to the Base Prospectus
relating to the Firm Securities and the Offering in accordance with the provisions of Rule 430B and Rule 424(b) under the
Securities Act Regulations. Such final prospectus supplement (including the Base Prospectus as so supplemented), in the form filed with
the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference
herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such prospectus.
“Applicable Time”
means 8 p.m., Eastern time, on the date of this Agreement.
“Disclosure Package”
means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Preliminary Prospectus dated November 28,
2023 and the information included on Schedule 2-A hereto, all considered together.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act (“Rule 433”),
including, without limitation, any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations)
relating to the Firm Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show
that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission,
or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the
Firm Securities or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors
(other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in
Schedule 2-B hereto.
“Issuer Limited Use
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
2.1.2 Pursuant
to the Exchange Act. The Company has filed with the Commission a Form 8-A providing for the registration pursuant to Section 12(b) under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the shares of Common Stock. The registration
of the Common Stock and related Form 8-A under the Exchange Act was declared effective prior to the date hereof. The Company has
taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act,
nor has the Company received any notification that the Commission is contemplating terminating such registration.
2.2 Stock
Exchange Listing. The shares of Common Stock are listed on the Nasdaq Capital Market (the “Exchange”), and the
Company has taken no action designed to, or likely to have the effect of, delisting the Common Stock from the Exchange, nor has the Company
received any notification that the Exchange is contemplating terminating such listing except as described or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus. The Company has submitted, or will promptly following the execution
of this Agreement submit, the Listing of Additional Shares Notification Form with the Exchange with respect to the Offering.
2.3 No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or,
to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with
each request (if any) from the Commission for additional information.
2.4 Disclosures
in Registration Statement.
2.4.1 Compliance
with Securities Act and 10b-5 Representation.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective (including each deemed effective
date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) complied and will comply in all
material respects with the requirements of the Securities Act and the Securities Act Regulations. The conditions for use of Form S-3,
set forth in the General Instructions thereto, including, but not limited to, General Instruction I.B.6 and other conditions related to
the offer and sale of the Firm Securities, have been satisfied. Each Preliminary Prospectus and the Prospectus, at the time each was or
will be filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the
Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(ii) Neither
the Registration Statement nor any amendment thereto, at the effective time of each part therein, as of the Applicable Time, at the Closing
Date contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances they were made, not misleading.
(iii) The
Disclosure Package, as of the Applicable Time, at the Closing Date did not, does not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and any Issuer Limited Use Free Writing Prospectus hereto does not conflict with the information contained
in the Registration Statement, any Preliminary Prospectus or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus,
as supplemented by and taken together with the Prospectus as of the Applicable Time, did not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements made
or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters
by the Representative expressly for use in the Registration Statement, the Disclosure Package or the Prospectus or any amendment thereof
or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter consists solely
of the following statements concerning the Underwriters contained in the “Underwriting” section of the Prospectus (the “Underwriters’
Information”): (a) the second sentence of the subsection entitled “Discounts and Commissions” related to concessions;
(b) the first three paragraphs under the subsection entitled “Price Stabilization, Short Positions and Penalty Bids”;
and (c) the subsection entitled “Electronic Distribution.”
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing
with the Commission pursuant to Rule 424(b), at the Closing Date, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to
the Underwriters’ Information.
2.4.2 Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Disclosure Package and the Prospectus conform
in all material respects to the descriptions thereof contained or incorporated by reference therein and there are no agreements or other
documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Disclosure
Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement or to be incorporated by reference
in the Registration Statement, the Disclosure Package or the Prospectus, that have not been so described or filed or incorporated by reference.
Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
or affected and (i) that is referred to or incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is
in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other
parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision
may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor
may be brought. None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to best of the Company’s
knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with
the lapse of time or the giving of notice, or both, would constitute a default thereunder, except for any default or event which would
not reasonably be expected to result in a Material Adverse Change (as defined below). To the Company’s knowledge, performance by
the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law,
rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company
or any of its assets or businesses (each, a “Governmental Entity”), including, without limitation, those relating to
environmental laws and regulations, except for any violation which would not reasonably be expected to result in a Material Adverse Change.
2.4.3 Prior
Securities Transactions. During the three last years, no securities of the Company have been sold by the Company or by or on behalf
of, or for the benefit of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed
or incorporated by reference in the Registration Statement, the Disclosure Package, the Preliminary Prospectus or public filings of the
Company’s affiliates (including in Section 16 and Section 13 filings).
2.4.4 Regulations.
The disclosures in the Registration Statement, the Disclosure Package and the Prospectus concerning the effects of material applicable
federal, state, local and foreign regulations on the Offering and the Company’s business as currently conducted are correct in all
material respects and no other such regulations are required to be disclosed in the Registration Statement, the Disclosure Package and
the Prospectus which are not so disclosed.
2.4.5 No
Other Distribution of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering
material in connection with the Offering other than any Preliminary Prospectus, the Disclosure Package, the Prospectus and other materials,
if any, permitted under the Securities Act and consistent with Section 3.2 below.
2.5 Changes
After Dates in Registration Statement.
2.5.1 No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise specifically stated or incorporated by reference therein: (i) there has been no material
adverse change in the financial position or results of operations of the Company, nor any change or development that, singularly or in
the aggregate, would involve a material adverse change in or affecting the condition (financial or otherwise), results of operations,
business or assets of the Company (a “Material Adverse Change”); (ii) there have been no material transactions
entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no executive officer or director of
the Company has resigned from any position with the Company.
2.5.2 Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has not: (i) issued any securities, other than shares issued or
issuable pursuant to then outstanding convertible securities (including, without limitation, the Xxxx Note (as defined below)), or incurred
any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution
on or in respect to its capital stock.
2.6 Commission
Filings. Since January 1, 2022, (i) none of the Company’s filings with the Commission contained any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriters’
Information; and (ii) the Company has made all filings with the Commission required under the Exchange Act and the rules and
regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”).
2.7 Independent
Accountants. To the knowledge of the Company, KPMG LLP (the “Auditors”), whose reports are filed with the Commission
and included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, is an independent
registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting
Oversight Board. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Auditors have not,
during the periods covered by the financial statements included or incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange
Act.
2.8 Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules included or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus, fairly present in all material respects the financial position
and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have
been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout
the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected
to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly in all material respects the information required to be stated therein. No other
historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Disclosure
Package or the Prospectus by the Securities Act or the Securities Act Regulations. The pro forma financial statements and the related
notes, if any, included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus have been
properly compiled and prepared in accordance with the applicable requirements of the Securities Act, the Securities Act Regulations, the
Exchange Act or the Exchange Act Regulations and present fairly in all material respects the information shown therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Registration Statement, the Disclosure Package or the Prospectus,
or incorporated or deemed incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K
of the Securities Act, to the extent applicable. Each of the Registration Statement, the Disclosure Package and the Prospectus discloses
all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of
the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components
of revenues or expenses. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (i) neither
the Company nor any of its direct and indirect subsidiaries, including each entity disclosed or described in the Registration Statement,
the Disclosure Package and the Prospectus as being a subsidiary of the Company (each, a “Subsidiary” and, collectively,
the “Subsidiaries”), has incurred any material liabilities or obligations, direct or contingent, or entered into any
material transactions other than in the ordinary course of business, (ii) the Company has not declared or paid any dividends or made
any distribution of any kind with respect to its capital stock, (iii) there has not been any change in the capital stock of the Company
or any of its Subsidiaries, or, other than in the course of business or any grants under any stock compensation plan, and (iv) there
has not been any Material Adverse Change in the Company’s long-term or short-term debt.
2.9 Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Disclosure Package
and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions stated in
the Registration Statement, the Disclosure Package and the Prospectus, the Company will have on the Closing Date, the adjusted stock capitalization
set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Disclosure Package and the Prospectus,
on the Effective Date, as of the Applicable Time and on the Closing Date, there will be no stock options, warrants, or other rights to
purchase or otherwise acquire any authorized, but unissued shares of Common Stock or any security convertible or exercisable into shares
of Common Stock, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible
securities.
2.10 Valid
Issuance of Securities, etc.
2.10.1 Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have
been duly authorized and validly issued and are fully paid and non-assessable; except as set forth in the Registration Statement, the
Disclosure Package and the Prospectus, the holders thereof have no rights of rescission or similar rights with respect thereto or put
rights and are not subject to personal liability by reason of being such holders; and none of such securities issued since January 24,
2019 were issued in violation of the preemptive rights, rights of first refusal or rights of participation of any holders of any security
of the Company or similar contractual rights granted by the Company. The authorized shares of Common Stock conform in all material respects
to all statements relating thereto contained in the Registration Statement, the Disclosure Package and the Prospectus. The offers and
sales of the outstanding shares of Common Stock were at all relevant times either registered under the Securities Act and the applicable
state securities or “blue sky” laws or, based in part on the representations and warranties of the purchasers of such shares
of Common Stock, exempt from such registration requirements.
2.10.2 Securities
Sold Pursuant to this Agreement. The Pre-funded Warrants and Common Warrants have been duly authorized by the Company and, when executed
and delivered by the Company in accordance with this Agreement, will constitute valid and legally binding agreements of the Company enforceable
against the Company in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors’ rights generally or by equitable principles relating to enforceability. The Pre-funded Warrant Shares
and the Common Warrant Shares have been duly authorized by the Company, and if, when and to the extent the Pre-funded Warrant Shares or
the Common Warrant Shares are issued and sold in accordance with all applicable terms and conditions set forth in, and in the manner contemplated
by, this Agreement and the Pre-funded Warrant or Common Warrant, respectively (including due and proper exercise of the relevant Pre-funded
Warrant or Common Warrant, respectively, in accordance therewith and payment in full of all consideration required thereunder for such
Pre-funded Warrant Shares or Common Warrant Shares, respectively), and as described in the Registration Statement, the Base Prospectus
and the Preliminary Prospectus, such Warrant Shares will be validly issued, fully paid and nonassessable. The Common Stock, the Pre-funded
Warrants and the Common Warrants conform in all material respects to all statements relating thereto contained in the Registration Statement,
the Base Prospectus and the Preliminary Prospectus, and the documents incorporated by reference therein, and such description conforms
in all material respects to the rights set forth in the instruments defining the same. The Firm Shares have been duly authorized for issuance
and sale and, when issued and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable; and all
corporate action required to be taken for the authorization, issuance and sale of the Firm Shares has been duly and validly taken. Except
as set forth in the Registration Statement, the Disclosure Package and the Prospectus, the Firm Securities are not and will not be subject
to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The Firm
Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement, the Disclosure
Package and the Prospectus.
2.11 Registration
Rights of Third Parties. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, no holders
of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the
right to require the Company to register any such securities of the Company under the Securities Act or to include any such securities
in a registration statement to be filed by the Company.
2.12 Validity
and Binding Effect of Agreements. This Agreement has been duly and validly authorized by the Company, and, when executed and delivered
by the Company, will constitute the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state
securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject
to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.13 No
Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and all ancillary documents, the consummation
by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof
do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict
with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination
or imposition of any lien, charge, mortgage, pledge, security interest, claim, equity, trust or other encumbrance, preferential arrangement,
defect or restriction of any kind whatsoever or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture,
mortgage, deed of trust, note, lease, loan agreement or any other agreement or instrument, franchise, license or permit to which the Company
is a party or as to which any property of the Company is subject; (ii) result in any violation of the provisions of the Company’s
Articles of Incorporation (as the same may be amended or restated from time to time, including all amendments and restatements to date,
the “Charter”) or the bylaws of the Company (as the same may be amended or restated from time to time, including all
amendments and restatements to date, the “Bylaws”); or (iii) violate any existing applicable law, rule, regulation,
judgment, order or decree of any Governmental Entity as of the date hereof (including, without limitation, those promulgated by the Food
and Drug Administration of the U.S. Department of Health and Human Services (the “FDA”) or by any foreign, federal,
state or local regulatory authority performing functions similar to those performed by the FDA), except in the cases of clauses (i) and
(iii) for such violations which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change.
2.14 No
Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of any material
license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing
an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of (i) any term
or provision of its Charter or Bylaws, or (ii) any franchise, license, permit, applicable law, rule, regulation, judgment or decree
of any Governmental Entity, except in the cases of clause (ii) for such violations which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change.
2.15 Corporate
Power; Licenses; Consents.
2.15.1 Conduct
of Business. The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental regulatory officials and bodies (“Permits”) that it
needs as of the date hereof to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus
except for such Permits that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
2.15.2 Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions
and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No
consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance,
sale and delivery of the Firm Securities, the Pre-funded Warrant Shares and the Common Warrant Shares and the consummation of the transactions
and agreements contemplated by this Agreement and as contemplated by the Registration Statement, the Disclosure Package and the Prospectus,
except with respect to applicable federal and state securities laws and the rules and regulations of the Exchange and the Financial
Industry Regulatory Authority, Inc. (“FINRA”).
2.16 [Reserved]
2.17 Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding
pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any executive
officer or director which has not been disclosed in the Registration Statement, the Disclosure Package and the Prospectus, and which is
required to be disclosed.
2.18 Good
Standing. The Company has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of
the State of Nevada as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction in
which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to be so qualified
or in good standing, singularly or in the aggregate, would not have, or reasonably be expected to result in, a Material Adverse Change.
2.19 Insurance.
The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks which
the Company believes are adequate and all such insurance is in full force and effect. The Company has no reason to believe that it will
not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result
in a Material Adverse Change.
2.20 Transactions
Affecting Disclosure to FINRA.
2.20.1 Finder’s
Fees. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are no claims, payments,
arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or,
to the best of the Company’s knowledge. any Insider with respect to the sale of the Firm Securities hereunder or any other arrangements,
agreements or understandings of the Company or, to the Company’s knowledge, any of its stockholders that may affect the Underwriters’
compensation, as determined by FINRA.
2.20.2 Payments
Within twelve Months. Except as described in the Registration Statement, the Disclosure Package and the Prospectus, the Company has
not made any direct or indirect payments (in cash, securities or otherwise) in connection with the Offering to: (i) any person, as
a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the
Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has
any direct or indirect affiliation or association with any FINRA member, within the twelve months immediately prior to the date of this
Agreement, other than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.20.3 Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates,
except as specifically authorized herein.
2.20.4 FINRA
Affiliation. To best of the Company’s knowledge, there is no (i) officer or director of the Company, (ii) beneficial
owner of 10% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered
equity securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is
an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and
regulations of FINRA). The Company (i) does not have any material lending or other relationship with any bank or lending affiliate
of any Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Firm Securities to repay any outstanding
debt owed to any affiliate of any Underwriter.
2.20.5 Information.
all information provided by the Company in its FINRA questionnaire to Xxxxxxxxx Xxxxxxx Xxxx Xxxxxx XXX, counsel to the Representative
(“Representative Counsel”), specifically for use by Representative Counsel in connection with its Public Offering System
filings (and related disclosure) with FINRA is true, correct and complete in all material respects.
2.21 Foreign
Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent,
or employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries,
has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of
any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection
with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a Material Adverse Change; (iii) if not continued in
the future, might adversely affect the assets, business, operations or prospects of the Company; (iv) violated or is in violation
of any provision of the FCPA or any applicable non-U.S. anti-bribery statute or regulation; (v) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment; or (vi) received notice of any investigation, proceeding or inquiry by any Governmental
Entity regarding any of the matters in clauses (i)-(v) above; and the Company has conducted its business in compliance with the FCPA
and has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient
to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the “FCPA”).
2.22 Compliance
with OFAC. None of the Company and its Subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company and its Subsidiaries nor, to the best of the Company’s knowledge, any other person acting on behalf
of the Company and its Subsidiaries, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury (“OFAC”), and the Company will not, directly or indirectly, use the proceeds of
the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
2.23 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in either the Registration Statement, Disclosure Package or Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
2.24 Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action,
suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened.
2.25 Regulatory.
2.25.1 All
preclinical studies and clinical trials conducted by or on behalf of the Company and its Subsidiaries that are described in the Registration
Statement, the Disclosure Package and the Prospectus or the results of which are referred to in the Registration Statement, the Disclosure
Package and the Prospectus were and, if still ongoing, are being conducted in material compliance with all laws and regulations applicable
thereto in the jurisdictions in which they are being conducted and with all laws and regulations applicable to preclinical studies and
clinical trials from which data will be submitted to support marketing approval. The descriptions in the Registration Statement, the Disclosure
Package and the Prospectus of the results of such studies and clinical trials are accurate and complete in all material respects and fairly
present in all material respects the data derived from such studies, and the Company has no knowledge of any large well-controlled clinical
study the aggregate results of which are inconsistent with or otherwise call into question the results of any clinical study conducted
by or on behalf of the Company that are described in the Registration Statement, the Disclosure Package and the Prospectus or the results
of which are referred to in the Registration Statement, the Disclosure Package and the Prospectus. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company has not received any written notices or statements from the FDA, the
European Medicines Agency (“EMA”) or any other governmental agency or authority imposing, requiring, requesting or
suggesting a clinical hold, termination, suspension or material modification for or of any preclinical studies and clinical trials that
are described in the Registration Statement, the Disclosure Package and the Prospectus or the results of which are referred to in the
Registration Statement, the Disclosure Package and the Prospectus. Except as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus, the Company has not received any written notices or statements from the FDA, the EMA or any other governmental agency,
and otherwise has no knowledge of, or reason to believe that, (i) any investigational new drug application for any potential product
of the Company is or has been rejected or placed on clinical hold; and (ii) any license, approval, permit or authorization to conduct
any clinical trial of any potential product of the Company has been, will be or may be suspended, revoked, modified or limited. Neither
the Company nor any of its subsidiaries has failed to file with the FDA or any foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the FDA, any filing, declaration, listing, registration, report or submission
that is required to be so filed, except where the failure to file, singularly or in the aggregate, would not have, or reasonably be expected
to result in, a Material Adverse Change. All such filings were in material compliance with applicable laws when filed and no deficiencies
have been asserted by any applicable regulatory authority (including, without limitation, the FDA or any foreign, federal, state or local
governmental or regulatory authority performing functions similar to those performed by the FDA) with respect to any such filings, declarations,
listings, registrations, reports or submissions, except where such deficiencies were remedied by the Company or would not be expected
to, individually or in the aggregate, result in a Material Adverse Change. To the knowledge of the Company, there are no facts that would
be reasonably likely to result in any warning, untitled or notice of violation letter or Form FDA-483 from the FDA.
2.25.2 Regulatory
Filings and Permits. The Company and its Subsidiaries have such Permits required by the appropriate domestic or foreign regional,
federal, state, or local regulatory agencies or bodies with jurisdiction over the Company necessary to conduct the business of the Company,
including, without limitation, any Investigational New Drug Application, Biologics License Application and/or New Drug Application, as
required by FDA or the Drug Enforcement Administration, or any other Permits required by domestic or foreign regional, federal, state,
or local agencies or bodies with jurisdiction over the Company engaged in the regulation of pharmaceuticals such as those being developed
by the Company and its Subsidiaries (collectively, the “Regulatory Permits”), except for any of the foregoing that
would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Change. The Company is in compliance
in all material respects with the requirements of the Regulatory Permits, and all of such Regulatory Permits are valid and in full force
and effect, except where such noncompliance would not reasonably be expected to, individually or in the aggregate, result in a Material
Adverse Change. The Company has not received any notice of proceedings relating to the revocation, termination, modification or impairment
of rights of any of the Regulatory Permits that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse Change.
2.25.3 Compliance
with Health Care Laws. Each of the Company and its Subsidiaries is, and at all times has been, in compliance in all material respects
with all applicable Health Care Laws, and has not engaged in activities which are, as applicable, cause for false claims liability, civil
penalties, or mandatory or permissive exclusion from Medicare, Medicaid, or any other state or federal health care program. For purposes
of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§
301 et seq.), the Public Health Service Act (42 U.S.C. §§ 201 et seq.), and the regulations promulgated thereunder; (ii) all
applicable federal, state, local and all applicable foreign health care related fraud and abuse laws, including, without limitation, the
U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h),
the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), all
criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care
fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42
U.S.C. Section 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalties law (42 U.S.C. §
1320a-7a), HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et
seq.), and the regulations promulgated pursuant to such statutes; (iii) Medicare (Title XVIII of the Social Security Act); (iv) Medicaid
(Title XIX of the Social Security Act); (v) the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) and the regulations
promulgated thereunder; and (vi) any and all other applicable health care laws and regulations. Neither the Company nor, to the knowledge
of the Company, any Subsidiary has received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in material violation of any Health Care Laws, and, to the Company’s knowledge, no such claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action is threatened in writing. Neither the Company nor,
to the knowledge of the Company, any Subsidiary is a party to or has any ongoing reporting obligations pursuant to any corporate integrity
agreements, deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar
agreements with or imposed by any governmental or regulatory authority. Additionally, neither the Company, its Subsidiaries nor any of
its respective employees, officers or directors has been excluded, suspended or debarred from participation in any U.S. federal health
care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding,
or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
2.26 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative Counsel
shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.27 Lock-Up
Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s executive officers and directors (collectively,
the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed
Lock-Up Agreement, in the form attached hereto as Exhibit C (the “Lock-Up Agreement”), prior
to the execution of this Agreement.
2.28 Subsidiaries.
All direct and indirect Subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization
or incorporation, and each Subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification, except where the failure to qualify would not have a Material Adverse Change. The Company’s
ownership and control of each Subsidiary is as described in the Registration Statement, the Disclosure Package and the Prospectus.
2.29 Related
Party Transactions.
2.29.1 Business
Relationships. There are no business relationships or related party transactions involving the Company or any other person required
to be described in the Registration Statement, the Disclosure Package and the Prospectus that have not been described as required.
2.29.2 No
Relationships with Customers and Suppliers. No relationship, direct or indirect, exists between or among the Company on the one hand,
and the directors, officers, 5% or greater stockholders, customers or suppliers of the Company or any of the Company’s affiliates
on the other hand, which is required to be described in the Disclosure Package and the Prospectus or a document incorporated by reference
therein and which is not so described.
2.29.3 No
Unconsolidated Entities. There are no transactions, arrangements or other relationships between and/or among the Company, any of its
affiliates (as such term is defined in Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited
to, any structure finance, special purpose or limited purpose entity that could reasonably be expected to result in a Material Adverse
Change.
2.29.4 No
Loans or Advances to Affiliates. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the officers or directors of the Company
or any of their respective immediate family members, or any other affiliates of the Company, except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus.
2.30 Board
of Directors. The Board of Directors of the Company is comprised of the persons disclosed in the Registration Statement, the Disclosure
Package and the Prospectus. The qualifications of the persons serving as board members and the overall composition of the board comply
with the Exchange Act, the Exchange Act Regulations, the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated thereunder (the “Xxxxxxxx-Xxxxx
Act”) applicable to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the
Board of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation
S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify
as “independent,” as defined under the listing rules of the Exchange.
2.31 Xxxxxxxx-Xxxxx
Compliance.
2.31.1 Disclosure
Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15
or 15d-15 under the Exchange Act Regulations, and such controls and procedures designed to ensure that all material information concerning
the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s Exchange Act
filings and other public disclosure documents.
2.31.2 Compliance.
The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Xxxxxxxx-Xxxxx
Act applicable to it, and has implemented or will implement such programs and has taken reasonable steps to ensure the Company’s
future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions of the
Xxxxxxxx-Xxxxx Act.
2.32 Accounting
Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting” (as defined
under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respects with the requirements of the
Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers,
or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus,
the Company is not aware of any material weaknesses in its internal controls. The Company’s auditors and the Audit Committee of
the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design
or operation of internal controls over financial reporting which are known to the Company’s management and that have adversely affected
or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information;
and (ii) any fraud known to the Company’s management, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal controls over financial reporting. Since the date of the latest audited financial
statements included in the Disclosure Package, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
2.33 No
Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof
as described in the Registration Statement, the Disclosure Package and the Prospectus, will not be, required to register as an “investment
company,” as defined in the Investment Company Act of 1940, as amended.
2.34 No
Labor Disputes. No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company,
is imminent.
2.35 Intellectual
Property Rights. The Company and each of its Subsidiaries owns or possesses or has valid rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets
and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company and its
Subsidiaries as currently carried on and as described in the Registration Statement, the Disclosure Package and the Prospectus, except
were the failure to own or possess such Intellectual Property Rights would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change. To the knowledge of the Company, no action or use by the Company or any of its Subsidiaries necessary
for the conduct of its business as currently carried on and as described in the Registration Statement and the Prospectus will involve
or give rise to any infringement of, or license or similar fees (other than license or similar fees described or contemplated in the Registration
Statement, the Disclosure Package and the Prospectus) for, any Intellectual Property Rights of others. Neither the Company nor any of
its Subsidiaries has received any written notice alleging any such infringement of, license or similar fees for, or conflict with, any
asserted Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Change, (i) to the knowledge of the Company, there is no infringement, misappropriation or violation by third
parties of any of the Intellectual Property Rights owned by the Company; (ii) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others challenging the rights of the Company in or to any such Intellectual Property Rights,
and the Company is unaware of any facts which would form a reasonable basis for any such claim, that would, individually or in the aggregate,
together with any other claims in this Section 2.35, reasonably be expected to result in a Material Adverse Change; (iii) the
Intellectual Property Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed to the
Company have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim that
would, individually or in the aggregate, together with any other claims in this Section 2.35, reasonably be expected to result in
a Material Adverse Change; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary
rights of others, the Company has not received any written notice of such claim and the Company is unaware of any other facts which would
form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims referred to in
this Section 2.35, reasonably be expected to result in a Material Adverse Change; and (v) to the Company’s knowledge,
no employee of the Company is in violation in any material respect of any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant
to or with a former employer where the basis of such violation relates to such employee’s employment with the Company, or actions
undertaken by the employee while employed with the Company and could reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Change. Except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse
Change, to the Company’s knowledge, all material technical information developed by and belonging to the Company which has not been
disclosed in a filed patent application has been kept confidential. The Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set forth in the Registration
Statement, the Disclosure Package and the Prospectus and are not described therein, none of the technology employed by the Company has
been obtained or is being knowingly used by the Company in violation of any contractual obligation binding on the Company or, to the Company’s
knowledge, any of its officers, directors or employees, or otherwise in violation of the rights of any persons.
All licenses for the use of
the Intellectual Property Rights described in the Registration Statement, the Disclosure Package and the Prospectus are in full force
and effect in all material respects and are enforceable by the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with their terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
None of such agreements or instruments has been assigned by the Company, and the Company is not, and to the Company’s knowledge,
no other party is in material default thereunder and no event has occurred that, with the lapse of time or the giving of notice, or both,
would constitute a material default thereunder.
2.36 Reserved
2.37 Taxes.
Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior
to the date hereof or has duly obtained extensions of time for the filing thereof, except in any case in which the failure so to file
would not reasonably be expected to result in a Material Adverse Change. Each of the Company and its Subsidiaries has paid all taxes (as
hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company or
such respective Subsidiary, as applicable, or as would not reasonably be expected to result in a Material Adverse Change. The provisions
for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all
accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements.
Except as disclosed in writing to the Underwriters, (i) no material issues have been raised (and are currently pending) by any taxing
authority in connection with any of the returns or taxes asserted as due from the Company or its Subsidiaries, and (ii) no waivers
of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company or its Subsidiaries.
The term “taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales,
use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns”
means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
2.38 ERISA
Compliance. The Company 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 or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (the “Code”) of which the Company 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 or any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its
ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the
Company or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and,
to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.39 Compliance
with Laws. The Company: (i) is and at all times has been in compliance with all statutes, rules, or regulations applicable to
the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer
for sale, storage, import, export storage or disposal of any product manufactured or distributed by the Company (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (ii) has
not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or written notice
from the FDA or any other governmental authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates,
approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possesses all material Authorizations and such Authorizations are valid and in full force and effect and is not in material
violation of any term of any such Authorizations; (iv) has not received written notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any governmental authority or third party alleging that any product operation
or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such governmental authority or third
party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received written
notice that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations
and has no knowledge that any such governmental authority is considering such action; (vi) has filed, obtained, maintained or submitted
all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented
by a subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to
be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear doctor”
letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation
and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
2.40 Environmental
Laws. The Company and its Subsidiaries are in compliance with all foreign, federal, state and local rules, laws and regulations relating
to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health and safety or the environment
which are applicable to their businesses (“Environmental Laws”), except where the failure to comply would not, singularly
or in the aggregate, result in a Material Adverse Change. There has been no storage, generation, transportation, handling, treatment,
disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused
by the Company or any of its Subsidiaries (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company
or any of its Subsidiaries is or may otherwise be liable) upon any of the property now or previously owned or leased by the Company or
any of its Subsidiaries, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree
or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation or liability which would not have, singularly or in the aggregate
with all such violations and liabilities, a Material Adverse Change; and there has been no disposal, discharge, emission or other release
of any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous substances
with respect to which the Company has knowledge except for any such disposal, discharge, emission, or other release of any kind which
would not have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Change.
2.41 Real
Property. Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, the Company and each of its
Subsidiaries has good and marketable title in fee simple to, or has valid rights to lease or otherwise use, all items of real or personal
property which are material to the business of the Company and its Subsidiaries taken as a whole, in each case free and clear of all liens,
encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries; and all of
the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the Registration Statement, the Disclosure Package and the Prospectus,
are, , in full force and effect, and neither the Company nor any Subsidiary has received any written notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease, which would result in a Material Adverse Change.
2.42 Contracts
Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates
(as such term is defined under Rule 405 of the Securities Act) and any unconsolidated entity, including, but not limited to, any
structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s
or any of its Subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described
or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus which have not been described or
incorporated by reference as required.
2.43 Ineligible
Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness of
the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company made a bona fide offer (within
the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Firm Securities and at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.44 Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Disclosure Package and the Prospectus
are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of data derived from such sources.
2.45 Margin
Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of
Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
2.46 Exchange
Act Reports. The Company has filed in a timely manner all reports required to be filed pursuant to Sections 13(a), 13(e), 14 and 15(d) of
the Exchange Act during the preceding 12 months (except to the extent that Section 15(d) requires reports to be filed pursuant
to Sections 13(d) and 13(g) of the Exchange Act, which shall be governed by the next clause of this sentence); and the Company
has filed in a timely manner all reports required to be filed pursuant to Sections 13(d) and 13(g) of the Exchange Act since
December 6, 2012, except where the failure to timely file could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Change.
2.47 Minute
Books. The minute books of the Company that have been made available to the Representative and counsel for the Representative (i) contain
a complete summary of all meetings and actions of the board of directors (including each board committee) and stockholders of the Company
(or analogous governing bodies and interest holders, as applicable), and each of its Subsidiaries for the period since January 1,
2021 through November 27, 2023, and (ii) accurately in all material respects reflect all transactions referred to in such minutes.
There are no material transactions, agreements, dispositions or other actions of the Company that are not properly approved and/or accurately
and fairly recorded in the minute books of the Company, as applicable. In the event that definitive minutes have not been prepared with
respect to any proceedings of such stockholders, boards of directors or committees, the Company has provided the Representative and counsel
for the Representative with true, correct and complete copies of draft minutes or written agendas relating thereto, which drafts and agendas,
if any, reflect all events that occurred in connection with such proceedings.
2.48 Integration.
Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated
with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities under
the Securities Act.
2.49 No
Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of
the Representative) has taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected
to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Firm Securities.
2.50 Confidentiality
and Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the Company is subject
to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer or prior employer that
could reasonably be expected to materially affect his ability to be and act in his respective capacity of the Company or be expected to
result in a Material Adverse Change.
2.51 Testing-the-Waters
Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters
Communications with the written consent of the Representative and with entities that are qualified institutional buyers within the meaning
of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the
Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company
confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company
has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto. “Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the Securities Act.
3. Covenants
of the Company. The Company covenants and agrees as follows:
3.1 Amendments
to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement to the Registration
Statement, Preliminary Prospectus, Disclosure Package or Prospectus related to the Offering proposed to be filed after the Effective Date
and not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2 Federal
Securities Laws.
3.2.1 Compliance.
The Company, subject to Section 3.2.2, shall comply in all material respects with the requirements of Rule 424(b) and Rule 430B
of the Securities Act Regulations, and will notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective or any amendment or supplement to any Preliminary Prospectus, the Disclosure
Package or the Prospectus shall have been filed and when any post-effective amendment to the Registration Statement shall become effective;
(ii) of the receipt of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to any Preliminary Prospectus, the Disclosure Package or the Prospectus or for additional information;
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment or of any order preventing or suspending the use of any Preliminary Prospectus, the Disclosure Package or the Prospectus, or
of the suspension of the qualification of the Firm Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act
concerning the Registration Statement; and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the Offering of the Firm Securities. The Company shall effect all filings required under Rule 424(b) of
the Securities Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)),
and shall take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall use
its commercially reasonable efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
3.2.2 Continued
Compliance. The Company shall comply in all material respects with the Securities Act, the Securities Act Regulations, the Exchange
Act and the Exchange Act Regulations so as to permit the completion of the distribution of the Firm Securities as contemplated in this
Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time when a prospectus relating to the
Firm Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”),
would be) required by the Securities Act to be delivered in connection with sales of the Firm Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend
the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) amend or supplement
the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a purchaser, not misleading or (iii) amend the Registration Statement
or amend or supplement the Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the Securities
Act or the Securities Act Regulations, the Company will promptly (A) give the Representative notice of such event; (B) prepare
any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish
the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement;
provided, however, that the Company shall not file or use any such amendment or supplement to which the Representative or
counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request. The Company has given the Representative notice of any filings made pursuant
to the Exchange Act or the Exchange Act Regulations within 48 hours prior to the Applicable Time. The Company shall give the Representative
notice of its intention to make any such filing from the Applicable Time until the Closing Date and will furnish the Representative with
copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be, and will not file
or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
3.2.3 Exchange
Act Registration. For a period of two (2) years after the date of this Agreement, the Company shall use its commercially reasonable
efforts to maintain the registration of the shares of Common Stock under the Exchange Act.
3.2.4 Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, which may not be
unreasonably withheld, it shall not make any offer relating to the Firm Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company
with the Commission or retained by the Company under Rule 433; provided, however, that the Representative shall be
deemed to have consented to each Issuer General Use Free Writing Prospectus hereto and any “road show that is a written communication”
within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated
or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer
free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements
of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at
any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included
or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify
the Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
3.2.5 Testing-the-Waters
Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs
an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative and shall promptly
amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or
omission.
3.3 Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available to
the Representative and Representative Counsel, without charge, signed copies of the Registration Statement as originally filed and each
amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver
to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without
exhibits) upon receipt of a written request therefor from such Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
3.4 Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each Underwriter,
without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge,
during the period when a prospectus relating to the Firm Securities is (or, but for the exception afforded by Rule 172, would be)
required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
3.5 [Reserved].
3.6 [Reserved].
3.7 Listing.
The Company shall use its best efforts to maintain the listing of the shares of Common Stock (including the Firm Shares) on the Exchange
for at least one year from the date of this Agreement.
3.8 Reports
to the Representative.
3.8.1 Periodic
Reports, etc. For a period ending on the earlier of (i) three (3) years after the date of this Agreement and (ii) such
date that the Common Stock is no longer registered under the Exchange Act, the Company shall furnish or make available to the Representative
copies of such financial statements and other periodic and current reports as the Company from time to time furnishes generally to holders
of any class of its securities and also promptly furnish to the Representative: (A) a copy of each periodic report the Company shall
be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (B) a copy of each Form 8-K
prepared and filed by the Company; and (C) a copy of each report or other communication furnished to stockholders; provided,
however, the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which
is reasonably acceptable to the Representative and Representative Counsel in connection with the Representative’s receipt of such
information. Documents filed with the Commission pursuant to its XXXXX system shall be deemed to have been delivered to the Representative
pursuant to this Section 3.8.1.
3.8.2 Transfer
Agent; Transfer Sheets. For a period ending on the earlier of (i) three (3) years after the date of this Agreement and (ii) such
date that the Common Stock is no longer registered under the Exchange Act, the Company shall retain a transfer agent and registrar acceptable
to the Representative (the “Transfer Agent”). Equiniti Trust Company is acceptable to the Representative to act as
Transfer Agent for the shares of Common Stock.
3.9 Payment
of Expenses. The Company hereby agrees to pay on the Closing Date, all expenses incident to the performance of the obligations of
the Company under this Agreement, including, but not limited to: (i) all filing fees and communication expenses relating to the registration
of the Firm Securities to be issued and sold in the Offering with the Commission; (ii) all filing fees associated with the review
of the Offering by FINRA; (iii) all fees and expenses relating to the listing of such Firm Shares on the Exchange, including any
fees charged by The Depository Trust Company (DTC) for new securities; (iv) all fees, expenses and disbursements relating to the
registration, qualification or exemption of the Firm Securities under the securities laws of such foreign jurisdictions as the Representative
may reasonably designate; (v) the costs of all mailing and printing of the underwriting documents (including, without limitation,
this Agreement, any blue sky surveys and, if appropriate, any agreement among underwriters, selected dealers’ agreement, underwriters’
questionnaire and power of attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as
many preliminary and final Prospectuses as the Representative may reasonably deem necessary; (vi) the costs of preparing, printing
and delivering certificates representing the Firm Shares, the Pre-funded Warrant Shares and the Common Warrant Shares; (vii) fees
and expenses of the Company’s transfer agent for the shares of Common Stock; (viii) stock transfer and/or stamp taxes, if any,
payable upon the transfer of securities from the Company to the Underwriters (ix) the fees and expenses of the Company’s accountants;
(x) the fees and expenses of the Company’s legal counsel and other agents and representatives; and (xi) the actual. reasonable
and documented fees and expenses of Representative Counsel not to exceed $50,000. The Representative may deduct from the net proceeds
of the Offering payable to the Company on the Closing Date, the expenses set forth herein to be paid by the Company to the Underwriters,
provided, however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 7.3
hereof.
3.10 Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the application
thereof described under the caption “Use of Proceeds” in the Registration Statement, the Disclosure Package and the Prospectus.
3.11 Delivery
of Earnings Statements to Security Holders. The Company will timely file such reports pursuant to the Exchange Act as are necessary
in order to make generally available to its security holders an earnings statement (which need not be certified by an independent registered
public accounting firm unless required by the Securities Act or the Securities Act Regulations, but which shall satisfy the provisions
of Rule 158(a) under Section 11(a) of the Securities Act).
3.12 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Representative)
has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to
cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Firm Securities.
3.13 Internal
Controls. For a period ending on the earlier of (i) three (3) years after the date of this Agreement and (ii) such
date that the Common Stock is no longer registered under the Exchange Act, the Company shall maintain a system of internal accounting
controls sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general
or specific authorization; (B) transactions are recorded as necessary in order to permit preparation of financial statements in accordance
with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
3.14 Accountants.
The Company shall continue to retain a nationally recognized independent registered public accounting firm for a period ending on the
earlier of (i) three (3) years after the date of this Agreement and (ii) such date that the Common Stock is no longer registered
under the Exchange Act and such nationally recognized independent firm shall continue to review (but not audit) the Company’s financial
statements for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information. The Representative
acknowledges that KPMG LLP qualifies as a nationally recognized independent registered public accounting firm.
3.15 FINRA.
For a period of ninety (90) days from the Closing Date, the Company shall advise the Representative (who shall make an appropriate filing
with FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 10% or more
of any class of the Company's securities or (iii) any beneficial owner of the Company's unregistered equity securities which were
acquired during the one hundred and eighty (180) days immediately preceding the filing of the Registration Statement is or becomes an
affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations
of FINRA).
3.16 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary capacity,
or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions
contemplated by this Agreement.
3.17 Reservation
of Shares. The Company shall, at all times while any Pre-funded Warrants are outstanding, reserve and keep available out of the aggregate
of its authorized but unissued and otherwise unreserved shares of Common Stock, solely for the purpose of enabling it to issue Pre-funded
Warrant Shares upon exercise of such Pre-funded Warrants, the number of Pre-funded Warrant Shares that are issuable and deliverable upon
the exercise of the then-outstanding Pre-funded Warrants. The Company shall, at all times while any Common Warrants are outstanding, reserve
and keep available out of the aggregate of its authorized but unissued and otherwise unreserved shares of Common Stock, solely for the
purpose of enabling it to issue Common Warrant Shares upon exercise of such Common Warrants, the number of Common Warrant Shares that
are issuable and deliverable upon the exercise of the then-outstanding Common Warrants.
3.18 Company
Lock-Up Agreements. The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the
Representative, it will not, during the period commencing on the date hereof and ending on the date that is the earlier of (a) forty-five
(45) days after the date of this Agreement or (b) the date on which the closing price of the Company’s Common Stock on the
Exchange is at or above 300% of the public offering price per Firm Share (subject to adjustments for stock dividends, stock splits, reverse
stock splits, recapitalizations, reorganizations or similar transactions after the date of this Agreement) (the “Lock-Up Period”),
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file
or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company
or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (iii) complete any
offering of debt securities of the Company, other than entering into a line of credit or senior credit facility with a traditional bank
or other lending institution; or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii),
(iii) or (iv) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash
or otherwise.
The restrictions contained in
this Section 3.18 shall not apply to (i) the Firm Shares, the, the Pre-funded Warrant Shares or the Common Warrant Shares to
be sold hereunder; (ii) the issuance by the Company of shares of Common Stock upon the exercise of a stock option or warrant (including
the Pre-funded Warrants and the Common Warrants), the vesting of restricted stock units, performance stock units or deferred stock units,
conversion of convertible notes or the exchange or conversion of a security outstanding on the date hereof, which is disclosed in the
Registration Statement, Disclosure Package and Prospectus, provided that such options, warrants, and securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities or to extend the term of such securities (in ease case, other than in connection with stock splits, stock dividends,
recapitalizations, reorganizations, reclassifications, combinations, reverse stock splits or other similar events occurring after the
date hereof), provided, further, that it is understood that such securities will not be deemed to have been amended if the terms of such
securities are automatically changed in accordance with their terms as such terms exist on the date of this Agreement, such as a decrease
in their exercise price due to an anti-dilution provision; (iii) the issuance by the Company of stock options, shares of capital
stock of the Company or other awards under any stock, equity or option, compensation plan, employee stock purchase plan, employee benefit
plan or other compensation plans of the Company; (iv) the issuance of shares of Common Stock or other securities issued to a third
party in connection with a bona fide commercial relationship (including strategic partnerships, joint ventures, marketing or distribution
arrangements, collaboration agreements or acquisition or license of any business products, technology or intellectual property) or any
bona fide acquisition of assets of not less than a majority or controlling portion of the equity of another entity, provided that such
shares of Common Stock are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights
that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 3.17;
(v) the filing of any registration statement on Form S-4 or Form S-8 or a successor form thereto relating to the shares
of Common Stock granted pursuant to or reserved for issuance under the stock-based compensation plans of the Company referred to in clause
(iii); (vi) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors
of the Company, provided that such shares of Common Stock are issued as “restricted securities” (as defined in Rule 144)
and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition
period in Section 3.17; (vii) issuances of shares of Common Stock or warrants to purchase shares of Common Stock to consultants,
advisors or vendors of the Company, provided that such shares of Common Stock are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 3.1; (viii) the filing of a new shelf registration statement on Form S-3
and any amendment or supplements thereto, provided that such filing is submitted to the Commission no earlier than twenty (20) days after
the pricing of the Offering; and (ix) issuances of shares of Common Stock pursuant to that certain convertible promissory note, dated
November 23, 2021, in the original principal amount of $22,000,000 issued by the Company in favor of Xxxx Global Asset Management
V, LLC (as subsequently amended, the “Xxxx Note”), including, but not limited to, the issuance of shares of
Common Stock upon conversion of the Xxxx Note and as payment of outstanding principal or accrued interest on the Xxxx Note, provided that
no term or condition of the Xxxx Note can be amended during the Lock-Up Period; provided further that in each of (ii) and
(iii) above, the underlying shares shall be restricted from sale during the entire Lock-Up Period.
3.19 Blue
Sky Qualifications. the Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify the Firm
Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as
the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution of the
Firm Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.20 Reporting
Requirements. The Company, during the period when a prospectus relating to the Firm Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission
pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations.
3.21 Press
Releases. Prior to the Closing Date, the Company shall not issue any press release or other communication directly or indirectly or
hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business
prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices
of the Company and of which the Representative is notified), without the prior written consent of the Representative, which consent shall
not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to the Representative, such
press release or communication is required by law.
3.22 Xxxxxxxx-Xxxxx.
Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company shall at all times comply with
all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
4. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Securities, as provided herein,
shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as
of the Closing Date; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the
performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1 Regulatory
Matters.
4.1.1 Commission
Actions; Required Filings. On the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus shall have been issued and no proceedings for any of those purposes shall have been instituted or are pending or, to
the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission
for additional information. If applicable, a prospectus containing the Rule 430B Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) under the Securities Act Regulations (without reliance on Rule 424(b)(8))
or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance
with the requirements of Rule 430B under the Securities Act Regulations.
4.1.2 No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements relating to the offering of the Firm Securities.
4.1.3 Nasdaq
Notice. At the Closing Date, the Company shall have filed a Notification: Listing of Additional Shares with respect to the Offering
with the Exchange (the “Nasdaq Notice”) and shall have received no objection thereto from the Exchange. If the Exchange
shall have raised any objections in connection with the Nasdaq Notice prior to the Closing Date, the Company shall immediately notify
Representative Counsel. As soon as available, the Company shall deliver to Representative Counsel an email from Nasdaq confirming the
completion of the Exchange’s review of the Nasdaq Notice.
4.2 Company
Counsel Matters.
4.2.1 Closing
Date Opinion of Company Counsel. On the Closing Date, the Representative shall have received the opinion of Xxxx Xxxxxxxx LLP, counsel
to the Company, and a written statement providing certain “10b-5” negative assurances, dated the Closing Date and addressed
to the Representative, in a form customary for offerings of this type and acceptable to the Representative.
4.2.2 Closing
Date Opinion of Nevada Counsel On the Closing Date, the Representative shall have received the opinion of Xxxxxxxxxx Xxxxx Xxxxxx
Xxxxxxx, LLP, counsel to the Company, dated the Closing Date and addressed to the Representative, in a form customary for offerings of
this type and acceptable to the Representative.
4.2.3 Opinion
of Special Intellectual Property Counsel for the Company. On the Closing Date, the Representative shall have received the opinion
of Xxxx & Xxxxxxxxxx P.C. as special intellectual property counsel for the Company, and a written statement providing certain
“10b-5” negative assurances, dated the Closing Date and addressed to the Representative, in a form customary for offerings
of this type and acceptable to the Representative.
4.2.4 [Reserved]
4.2.5 [Reserved].
4.2.6 Reliance.
In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the
United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel
reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they
deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing of the Company.
4.3 Comfort
Letters.
4.3.1 Cold
Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter from the Auditors containing
statements and information of the type customarily included in accountants’ comfort letters with respect to the financial statements
and certain financial information contained or incorporated or deemed incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, addressed to the Representative and in form and substance satisfactory in all respects to you and to the Auditors, dated
as of the date of this Agreement.
4.3.2 Bring-down
Comfort Letter. At the Closing Date, the Representative shall have received from the Auditors a letter, dated as of the Closing Date,
to the effect that the Auditors reaffirm the statements made in its letter furnished pursuant to Section 4.3.1, except that the specified
date referred to shall be a date not more than three (3) business days prior to the Closing Date.
4.4 Officers’
Certificates.
4.4.1 Officers’
Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date, of its Chief Executive
Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Disclosure
Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto,
as of the Applicable Time and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Disclosure Package,
as of the Applicable Time and as of the Closing Date any Issuer Free Writing Prospectus as of its date and as of the Closing Date, and
the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include
any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Disclosure Package
or the Prospectus, (iii) to their knowledge, as of the Closing Date, the representations and warranties of the Company in this Agreement
are true and correct in all material respects (except for those representations and warranties qualified as to materiality, which shall
be true and correct in all respects and except for those representations and warranties which refer to facts existing at a specific date,
which shall be true and correct as of such date) and the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv) there has not been, subsequent to the date
of the most recent audited financial statements included or incorporated by reference in the Disclosure Package, a Material Adverse Change,
except as set forth in the Prospectus.
4.4.2 Secretary’s
Certificate. At the Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary of the
Company, dated the Closing Date, certifying on behalf of the Company and not in an individual capacity: (i) that each of the Charter and
Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the
Company’s Board of Directors or any financing committee thereof relating to the Offering are in full force and effect and have not
been modified; and (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the Commission
related to the Offering; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.4.3 Chief
Financial Officer’s Certificate. At the Closing Date, the Representative shall have received a certificate of the Chief Financial
Officer of the Company, dated the Closing Date, respectively, with respect to the accuracy of certain information contained in the Registration
Statement, the Disclosure Package and the Prospectus, in a form reasonably acceptable to the Representative.
4.5 No
Material Changes. Prior to the Closing Date: (i) there shall have been no Material Adverse Change from the latest dates as of
which such condition is set forth in the Registration Statement, the Disclosure Package and the Prospectus and no change in the capital
stock or debt of the Company (other than with respect to the accrual of interest, and payments of interest and principal, under the Xxxx
Note); (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any
Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling
or finding may reasonably be expected to result in a Material Adverse Change, except as set forth in the Registration Statement, the Disclosure
Package and the Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall
have been initiated or threatened by the Commission; (iv) no action shall have been taken and no law, statute, rule, regulation or
order shall have been enacted, adopted or issued by any Governmental Entity which would prevent the issuance or sale of the Firm Securities
or may reasonably be expected to result in a Material Adverse Change; (v) no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the
Firm Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company;
and (vi) the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain
all material statements which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations
and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the
Registration Statement, the Disclosure Package, the Prospectus nor any amendment or supplement thereto shall contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
4.6 Corporate
Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement,
the Firm Securities, the Registration Statement, the Disclosure Package and the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
4.7 Delivery
of Agreements.
4.7.1 Lock-Up
Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representative executed copies of the
Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.8 Additional
Documents. At the Closing Date, Representative Counsel shall have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling Representative Counsel to deliver an opinion to the Underwriters, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of the Firm Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and Representative Counsel.
5. Indemnification.
5.1 Indemnification
of the Underwriters.
5.1.1 General.
Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates and each
of its and their respective directors, officers, members, employees, representatives, partners, shareholders, affiliates, counsel and
agents and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified
Party”), against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to the reasonable
and documented out of pocket fees and legal expenses of counsel for the Underwriter Indemnified Parties reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between
any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties and any third party,
or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common
law or otherwise or under the laws of foreign countries (a “Claim”), arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Disclosure Package, the Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus or in any Written Testing-the-Waters Communication (as from time to time
each may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company
in connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by
the Company (whether in person or electronically); (iii) any application or other document or written communication (in this Section 5,
collectively called “application”) executed by the Company or based upon written information furnished by the Company
in any jurisdiction in order to qualify the Firm Securities under the securities laws thereof or filed with the Commission, any state
securities commission or agency, the Exchange or any other national securities exchange; or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’
Information, or (iv) otherwise arising in connection with or allegedly in connection with the Offering. With respect to any untrue
statement or omission or alleged untrue statement or omission made in the Registration Statement, Disclosure Package or Prospectus, the
indemnity agreement contained in this Section 5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the extent
that any loss, liability, claim, damage or expense of such Underwriter Indemnified Party results from the fact that a copy of the Prospectus
was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale
of the Shares to such person as required by the Securities Act and the Securities Act Regulations, and if the untrue statement or omission
has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with
its obligations under Section 3.3 hereof. The Company also agrees that it will reimburse each Underwriter Indemnified Party for all
actual, reasonable and documented out of pocket fees and expenses (including but not limited to the reasonable, documented and out of
pocket fees and expenses of counsel for the Underwriter Indemnified Parties reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriter
Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties and any third party, or otherwise) (collectively,
the “Expenses”), and further agrees to advance payment of Expenses as they are incurred by an Underwriter Indemnified
Party in investigating, preparing, pursuing or defending any Claim.
5.1.2 Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may reasonably be sought against the Company
pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of
such action and the Company shall assume the defense of such action, including the employment and fees of counsel reasonably satisfactory
to such Underwriter Indemnified Party. Such Underwriter Indemnified Party shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter Indemnified Party unless the Company
has failed promptly to assume the defense and employ counsel for the benefit of the Underwriter Indemnified Party or such Underwriter
Indemnified Party shall have been advised that in the opinion of counsel that there is an actual conflict of interest that prevents the
counsel designated by the Company and approved by the Underwriters and engaged by the Company for the purpose of representing the Underwriter
Indemnified Party, to represent both such Underwriter Indemnified Party and any other person requested or proposed to requested by such
counsel,. The Company shall not be liable for any settlement of any action effected without its prior written consent (which shall not
be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters (which consent shall
not be unreasonably withheld), settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending
or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether
or not such Underwriter Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination (i) includes
an unconditional release of each Underwriter Indemnified Party, acceptable to such Underwriter Indemnified Party, from all liabilities,
expenses and claims arising out of such action for which indemnification or contribution may be sought and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Underwriter Indemnified Party.
5.2 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity
from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Disclosure Package or Prospectus or any amendment or supplement thereto or in any application,
in reliance upon, and in conformity with, the Underwriters’ Information. In case any action shall be brought against the Company
or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Disclosure Package or Prospectus
or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the
rights and duties given to the several Underwriters by the provisions of Section 5.1.2. The Company agrees promptly to notify the
Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person,
if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in
connection with the issuance and sale of the Firm Securities or in connection with the Registration Statement, the Disclosure Package,
the Prospectus or any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3 Contribution.
5.3.1 Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, from the Offering of the Firm Securities, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall
be deemed to be in the same proportion as the total net proceeds from the Offering of the Firm Securities purchased under this Agreement
(before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand,
and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Common Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this
Section 5.3.1, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect
to the Offering of the Firm Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
5.3.2 Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party
(“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify the
contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder.
In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representative
of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate therein with the notifying
party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution
on account of any settlement of any claim, action or proceeding affected by such party seeking contribution on account of any settlement
of any claim, action or proceeding affected by such party seeking contribution without the written consent of such contributing party.
The contribution provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted by law, any right
to contribution under the Securities Act, the Exchange Act or otherwise available. Each Underwriter’s obligations to contribute
pursuant to this Section 5.3 are several and not joint.
6. Default
by an Underwriter.
6.1 Default
Not Exceeding 10% of Firm Securities. If any Underwriter or Underwriters shall default in its or their obligations to purchase the
Firm Securities, and if the number of the Firm Securities with respect to which such default relates does not exceed in the aggregate
10% of the number of Firm Securities that all Underwriters have agreed to purchase hereunder, then such Firm Securities to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default
Exceeding 10% of Firm Securities. In the event that the default addressed in Section 6.1 relates to more than 10% of the Firm
Securities, you may in your discretion arrange for yourself or for another party or parties to purchase such Firm Securities to which
such default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10%
of the Firm Shares, you do not arrange for the purchase of such Firm Securities, then the Company shall be entitled to a further period
of one (1) Business Day within which to procure another party or parties satisfactory to you to purchase said Firm Securities on
such terms. In the event that neither you nor the Company arrange for the purchase of the Firm Securities to which a default relates as
provided in this Section 6, this Agreement will automatically be terminated by you or the Company without liability on the part of
the Company (except as provided in Sections 3.9 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof);
provided, however, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters
and to the Company for damages occasioned by its default hereunder.
6.3 Postponement
of Closing Date. In the event that the Firm Securities to which the default relates are to be purchased by the non-defaulting Underwriters,
or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the
Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other documents and arrangements,
and the Company agrees to file promptly any amendment to the Registration Statement, the Disclosure Package or the Prospectus that in
the opinion of counsel for the Underwriter may thereby be made necessary. The term “Underwriter” as used in this Agreement
shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement
with respect to such shares of Common Stock, Pre-funded Warrants and Common Warrants.
6.4 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as members of
the Board of Directors and the overall composition of the Board comply with the Xxxxxxxx-Xxxxx Act, with the Exchange Act and with the
listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company seeks to have
any of its securities listed on another exchange or quoted on an automated quotation system, and (ii) if applicable, at least one
member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,” as such term is
defined under Regulation S-K and the listing rules of the Exchange.
6.5 Prohibition
on Press Releases and Public Announcements. The Company shall not issue press releases, without the Representative’s prior written
consent (which consent shall not be unreasonably withheld, conditioned or delayed), for a period ending at 5:00 p.m., Eastern time, on
the first (1st) Business Day following the forty-fifth (45th) day after the Closing Date, other than normal and
customary releases issued in the ordinary course of the Company’s business or except as required by federal securities laws or to
the extent such disclosure is required by law or regulations of the Exchange.
7. Effective
Date of this Agreement and Termination Thereof.
7.1 Effective
Date. This Agreement shall become effective on the date when both the Company and the Representative have executed the same and delivered
counterparts of such signatures to the other party.
7.2 Termination.
The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or
international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially disrupt,
general securities markets in the United States; or (ii) if trading on the Exchange shall have been suspended or materially limited,
or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required by
FINRA or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have
become involved in a new war or an increase in major hostilities; or (iv) if a banking moratorium has been declared by a New York
State or federal authority; or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts
the United States securities markets; or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s
opinion, make it inadvisable to proceed with the delivery of the Firm Securities; or (vii) if the Company is in material breach of
any of its representations, warranties or covenants hereunder; or (viii) if the Representative shall have become aware after the
date hereof of a Material Adverse Change, or such adverse material change in general market conditions as in the Representative’s
judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Firm Securities or to enforce contracts
made by the Underwriters for the sale of the Firm Securities.
7.3 Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant to Section 6.2
above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions
thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual, reasonable and accountable
out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the actual, reasonable and documented
fees and disbursements of Representative’s Counsel) not to exceed $60,000 and upon demand the Company shall pay the full amount
thereof to the Representative on behalf of the Underwriters; provided, however, that such expense cap in no way limits or impairs the
indemnification and contribution provisions of this Agreement. Notwithstanding the foregoing, any advance received by the Representative
will be reimbursed to the Company to the extent not actually incurred in compliance with FINRA Rule 5110(g)(4)(A).
7.4 Survival
of Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force
and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement or
any part hereof.
7.5 Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its affiliates or selling agents, any person controlling any Underwriter, its officers or directors
or any person controlling the Company or (ii) delivery of and payment for the Firm Securities.
8. Miscellaneous.
8.1 Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or
certified mail, return receipt requested), personally delivered or sent by electronic mail transmission and confirmed and shall be deemed
given when so delivered and confirmed or if mailed, two (2) days after such mailing.
If to the Representative:
Titan Partners Group LLC, a division of American Capital
Partners, LLC
0 Xxxxx Xxxxx Xxxxxx, 00xx Floor
New York, NY 10007
e-mail: xxxx@xxxxxxxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxx Xxxxxxx Carmel LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx floor
New York, NY 10036
Attn: Xxxx Xxxxxx
email: xxxxxxx@xxxx.xxx
If to the Company:
Seelos Therapeutics, Inc.
000 Xxxx Xxxxxx, 0xx Floor
New York, NY 10022
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxxx LLP
0000 X. Xxxxxxxxxx Xxxxxx
Palo Alto, CA 94304
Attention: Xxxx Xxxxxxx
Email: xxxxxxxxxxx@xxxxxxxxxxxx.xxx
8.2 Research
Analyst Independence. The Company acknowledges that each Underwriter’s research analysts and research departments are required
to be independent from its investment banking division and are subject to certain regulations and internal policies, and that such Underwriter’s
research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the
Company and/or the Offering that differ from the views of their investment banking division. The Company acknowledges that each Underwriter
is a full service securities firm and as such from time to time, subject to applicable securities laws, rules and regulations, may
effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the Company; provided, however, that nothing in this Section 9.2 shall relieve the Underwriter of any responsibility
or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations.
8.3 Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
8.4 Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties hereto.
8.5 Entire
Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this
Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes
all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. Notwithstanding anything
to the contrary set forth herein, it is understood and agreed by the parties hereto that all other terms and conditions of that certain
engagement letter between the Company and Titan Partners Group LLC, dated November 2, 2023, shall remain in full force and effect.
8.6 Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company
and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives,
heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect
of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns” shall not include
a purchaser, in its capacity as such, of securities from any of the Underwriters.
8.7 Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in the New York
Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action,
proceeding or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection
with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
8.8 Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient
delivery thereof.
8.9 Waiver, etc.
The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or the right of
any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or
non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
|
Very truly yours, |
|
|
|
SEELOS THERAPEUTICS, INC. |
|
|
|
By: |
/s/ Xxx Xxxxx, Ph.D. |
|
|
Name: |
Xxx Xxxxx, Ph.D. |
|
|
Title: |
President and Chief Executive Officer |
Confirmed as of the date first written
above mentioned, on behalf of
itself and as
Representative of the several Underwriters
named on Schedule 1 hereto:
TITAN PARTNERS GROUP LLC, A DIVISION OF AMERICAN CAPITAL PARTNERS,
LLC
By: |
/s/ Xxxxxx Xxxxxxxx |
|
|
Name: |
Xxxxxx Xxxxxxxx |
|
|
Title: |
Authorized Representative |
|
SCHEDULE
1
Underwriter(s) | |
Number of Firm Shares to be Purchased | | |
Number of Pre- funded Warrants to be Purchased | | |
Number of Common Warrants to be Purchased | |
Titan Partners Group, LLC | |
| 1,781,934 | | |
| 2,422,612 | | |
| 4,204,546 | |
TOTAL | |
| 1,781,934 | | |
| 2,422,612 | | |
| 4,204,546 | |
SCHEDULE 2-A
Pricing Information
Number of Firm Shares: 1,781,934
Number of Pre-funded Warrants: 2,422,612
Number of Common Warrants: 4,204,546
Public Offering Price per Firm Share and accompanying Common Warrant:
$1.32
Public Offering Price per Pre-funded Warrant and accompanying Common
Warrant: $1.319
Underwriting Discount per Share and accompanying Common Warrant: $0.0924
Underwriting Discount per Pre-funded Warrant and accompanying Common
Warrant: $0.0923
Proceeds to Company per Firm Share and accompanying Common Warrant
(before expenses): $2,352,153
Proceeds to Company per Pre-funded Warrant and accompanying Common
Warrant (before expenses): $3,195,425
SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
None.
SCHEDULE 2-C
Written Testing-the-Waters Communications
None.
SCHEDULE 3
List of Lock-Up Parties
Name | | Position |
Xxx Xxxxx, Ph.D. | | Chief Executive Officer, Chairman of the Board |
Xxxxxxx Xxxxxxxxxxxx | | Chief Financial Officer |
Xxxxxxxx Xxxxxxxxxx | | Member of the Board of Directors |
Xxxxx Xxxx, Ph.D. | | Member of the Board of Directors |
Xxxxxx X. X’Xxxxxx | | Member of the Board of Directors |
Xxxxxxx Xxxxxx | | Member of the Board of Directors |
EXHIBIT C
Form of Lock-Up Agreement
November 28, 2023
Titan Partners Group, LLC, a division of American Capital Partners,
LLC
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
New York, NY 10007
Ladies and Gentlemen:
The undersigned understands
that Titan Partners Group LLC, a division of American Capital Partners, LLC (the “Representative”), as representative
of the several underwriters named therein (the “Underwriters”), proposes to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Seelos Therapeutics, Inc., a corporation formed under the laws of the State of
Nevada (the “Company”), providing for the proposed public offering (the “Public Offering”) of shares
of common stock, par value $0.001 per share, of the Company (the “Shares”).
To induce the Representative
to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent
of the Representative the undersigned will not, during the period commencing on the date hereof and ending on the date that is the earlier
of (a) forty-five (45) days after the date of this Agreement or (b) the date on which the closing price of the Company’s
Common Stock on the Exchange is at or above 300% of the public offering price per Firm Share (subject to adjustments for stock dividends,
stock splits, reverse stock splits, recapitalizations, reorganizations or similar transactions after the date of this Agreement) (the
“Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of,
directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively,
the “Lock-Up Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any
right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale,
pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding
the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent
of the Representative in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after
the completion of the Public Offering; provided that no filing under Section 16(a) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent
sales of Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide
gift or gifts; (c) transfers by will, other testamentary document, intestate succession to the legal representative, heir, beneficiary
or a family member of the undersigned; (d) transfers to a family member or trust for the direct or indirect benefit of the undersigned
or a family member (for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or adoption,
not more remote than first cousin); (e) transfers of Lock-Up Securities to a charity or educational institution or as a charitable
contribution; (f) transfers for bona fide estate planning purposes; (g) if the undersigned, directly or indirectly, controls,
or is, a corporation, partnership, limited liability company or other business entity, any transfers of Lock-Up Securities to any shareholder,
partner or member of, or owner of similar equity interests in, the undersigned, as the case may be; (h) transfers to any corporation,
partnership, limited liability company, or other business entity all of the equity holders of which consist of the undersigned and/or
a family member of the undersigned; (i) transfer to any trust for the benefit of the undersigned or the immediate family of the undersigned;
(j) transfers by operation of law, including, but not limited to, pursuant to a qualified domestic order or decree of any court or
governmental agency or body, domestic or foreign, having jurisdiction over the undersigned or any of the undersigned’s properties
or assets, or in connection with a domestic order, divorce settlement, divorce decree or separation agreement; (k) transfers pursuant
to a bona fide third-party tender offer, merger, consolidation or other similar transaction for the transfer of Shares, options, warrants,
convertible securities or other rights to acquire Shares, that is approved by the Board of Directors of the Company and made to all holders
of the Company’s capital stock the result of which is that any “person” (as defined in Section 13(d)(3) of
the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of
more than 50% of total voting power of the voting stock of the Company or the surviving entity; (l) transfers to satisfy tax withholding
obligations of the undersigned in connection with the vesting or exercise of equity awards by the undersigned, or pursuant to a net exercise
or cashless exercise (to satisfy exercise price or related withholding obligations) by the undersigned of outstanding equity awards, provided
that any Shares acquired upon the net exercise or cashless exercise of equity awards described in this clause shall be subject to the
restrictions set forth in this lock-up agreement; and (m) transfers to the Company in connection with the termination of employment
or other termination of a service provider whereby the Company has the option to repurchase such shares or securities; provided
that in the case of any transfer pursuant to the foregoing clauses (g), (k) or (l) (A) any such transfer shall not
involve a disposition for value, (B) each transferee shall sign and deliver to the Representative a signed lock-up agreement substantially
in the form of this lock-up agreement and (C) no filing under Section 16(a) of the Exchange Act shall be required or shall
be voluntarily made. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
No provision in this agreement
shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities exercisable or exchangeable
for or convertible into Shares, as applicable; provided that the undersigned does not transfer the Shares acquired on such exercise,
exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms of this lock-up agreement. In addition,
no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at
any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Lock-Up Securities within
the Lock-Up Period).
The undersigned understands
that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering.
The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns. This lock-up Agreement may be delivered via facsimile, electronic mail (including pdf or
any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx or xxx.xxxxxxxx.xxx) 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.
The undersigned understands
that, if the Underwriting Agreement is not executed by [*], or if the Underwriting Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder, then this
lock-up agreement shall be void and of no further force or effect.
Whether or not the Public
Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
This lock-up agreement may
not be amended or otherwise modified in any respect without the written consent of each of the Representative and the undersigned. This
lock-up agreement shall be construed and enforced in accordance with the laws of the State of New York without regard to the principles
of conflict of laws. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court sitting
in the Southern District of New York and the courts of the State of New York located in Manhattan, for the purposes of any suit, action
or proceeding arising out of or relating to this lock-up agreement, and hereby waives, and agrees not to assert in any such suit, action
or proceeding, any claim that (i) it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding
is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper. The undersigned hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by receiving a copy thereof
sent to the Company at the address in effect for notices to it under the Underwriting Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. The undersigned hereby waives any right to a trial by jury. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. The undersigned agrees and understands
that this lock-up agreement does not intend to create any relationship between the undersigned and any Underwriting and that no Underwriter
is entitled to cast any votes on the matters herein contemplated and that no issuance or sale of any Shares in the Public Offering is
created or intended by virtue of this lock-up agreement.
|
Very truly yours, |
|
|
|
|
|
(Name - Please Print) |
|
|
|
|
(Signature) |
|
|
|
|
|
(Name of Signatory, in the case of
entities - Please Print) |
|
|
|
|
|
(Title of Signatory, in the case of
entities - Please Print) |
|
|
|
Address: |
|
|
|
|
|
|
|