Exhibit 1.1
CHROMOCELL
THERAPEUTICS CORPORATION
UNDERWRITING
AGREEMENT
[●],
2024
A.G.P./
Alliance Global Partners
000
Xxxxxxx Xxxxxx,
28th
Floor New York
New
York 10022
As
Representative of the Underwriters
named
on Schedule A hereto
Ladies
and Gentlemen:
Chromocell
Therapeutics Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions
stated herein, to issue and sell an aggregate of [1,037,174] shares (the “Shares”) of the Company’s common
stock, $0.0001 par value per share (the “Common Stock”) to A.G.P./ Alliance Global Partners (the “Representative”)
and with the other underwriters named on Schedule A hereto (if any), for which the Representative is acting as the
representative (the Representative and such other underwriters being collectively referred to herein as the “Underwriters”
or, each underwriter individually, an “Underwriter”). Such Shares are hereinafter collectively called the “Firm
Shares.” The Company has also agreed to grant to the Representative on behalf of the Underwriters an option (the “Option”)
to purchase up to an additional [ ] shares of Common Stock (the “Option Shares”) on the terms set forth in
Section 1(b) hereof. The Shares included in the Firm Shares and the Option Shares are hereinafter collectively called the “Public
Securities.” The Public Securities and the Representative’s Warrant Shares (as defined below) are collectively
referred to as the “Registered Securities.”
The
Company confirms as follows its agreement with each of the Underwriters:
1. Agreement to Sell and Purchase.
(a)
Purchase of Firm Shares. On the basis of the representations, warranties and agreements
of the Company contained herein and subject to all the terms and conditions of this Agreement, the Company agrees to sell to
the Underwriters, severally and not jointly, and the Underwriters, severally and not jointly, agree to purchase from the
Company, the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a purchase price
(the “Purchase Price”) (prior to discount and commissions) of $[ ] per Share (or $[ ] per Share net of
discount and commissions); provided, however, that no discount or commission will be payable by the Company in respect of
Firm Shares issued in satisfaction of the Director Note and/or Investor Note (each as defined in the Registration
Statement).
(b) Purchase of Option Shares. Subject to all the terms and conditions of this Agreement, the Company grants to the Representative
on behalf of the Underwriters the Option to purchase, severally and not jointly, all or less than all of the Option Shares. The
purchase price (net of discount and commissions) to be paid for each Option Share will be the same Purchase Price (net of discount
and commissions) allocated to each Share. The Option may be exercised in whole or in part at any time and from time to time on
or before the 45th day after the date of this Agreement, upon written notice (the “Option Notice”) by the Representative
to the Company no later than 12:00 noon, New York City time, at least one and no more than five business days before the date
specified for closing in the Option Notice (the “Option Closing Date”) setting forth the aggregate number of
Option Shares to be purchased and the time and date for such purchase. Upon exercise of the Option, the Company will become obligated
to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated
to purchase, the number of Option Shares specified in the Option Notice. If any Option Shares are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Option Shares that bears the same proportion to the number of Firm
Shares to be purchased by it as set forth on Schedule A opposite such Underwriter’s name as the total number of Option
Shares to be purchased bears to the total number of Firm Shares.
Payment
for the Option Shares shall be made on the Option Closing Date by wire transfer in Federal (same day) funds, payable to the order
of the Company upon delivery to you of certificates (in form and substance satisfactory to the Underwriters) representing the
Option Shares (or, in each case, through the facilities of DTC (as defined below)) for the account of the Underwriters. The Option
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 Option Closing Date. The Company shall not be obligated to sell or deliver the
Option Shares except upon tender of payment by the Representative for applicable Option Shares.
(c) Representative’s Warrants. The Company hereby agrees to issue to the Representative (and/or its designees) on the
Closing Date (as defined below) and each Option Closing Date, as the case may be, warrants to purchase an aggregate of five percent
(5%) of the number of Firm Shares issued at such closing (the “Representative’s Warrants”), substantially
in the form filed as an exhibit to the Registration Statement. The Representative’s Warrants shall be exercisable, in whole
or in part, commencing six months following the commencement of sales of Public Securities registered on the Registration Statement
(the “Effective Date”) and expiring five years following the commencement of sales of Public Securities registered
on the Registration Statement, at an initial exercise price of $[●] per warrant, which is equal to one hundred and twenty-five
percent (125%) of the Purchase Price per share issued at such closing. The shares of Common Stock issuable upon exercise of the
Representative’s Warrants are hereinafter referred to as the “Representative’s Warrant Shares.”
2. Delivery and Payment.
(a) Closing. Delivery of the Firm Shares shall be made to the Representative through the facilities of the Depository Trust
Company (“DTC”) for the respective accounts of the Underwriters against payment of the Purchase Price by wire
transfer of immediately available funds to the order of the Company. Such payment shall be made at 10:00 a.m., New York City
time, on the second business day (the third business day, should the offering of Public Securities be priced after 4:00 p.m.,
New York City Time) after the date of this Agreement or at such time on such other date, not later than ten business days after
such date, as may be agreed upon by the Company and the Representative (such date is hereinafter referred to as the “Closing
Date”).
(b) Option Closing. To the extent the Option is exercised, delivery of the Option Shares against payment by the Underwriters
(in the manner and at the location specified above) shall take place at the time and date (which may be the Closing Date, but
not earlier than the Closing Date) specified in the Option Notice.
(c) Electronic Transfer. Electronic transfer of the Public Securities shall be made at the time of purchase in such names and
in such denominations as the Representative shall specify.
(d) Tax Stamps. The cost of original issue tax stamps, if any, in connection with the issuance and delivery of the Public Securities
by the Company to the Underwriters shall be borne by the Company. The Company shall pay and hold each Underwriter and any subsequent
holder of the Public Securities harmless from any and all liabilities with respect to or resulting from any failure or delay in
paying United States federal and state and foreign stamp and other transfer taxes, if any, which may be payable or determined
to be payable in connection with the original issuance, sale and delivery to such Underwriter of the Public Securities.
3. Representations and Warranties of the Company. The Company represents and warrants to, and covenants with, each of the
Underwriters as follows:
(a) Compliance with Registration Requirements. A registration statement on Form S-1 (Registration No. 333-269188) relating
to the Registered Securities, including a preliminary prospectus and such amendments to such registration statement as may have
been required prior to the date of this Agreement, has been prepared by the Company under the provisions of the Securities Act
of 1933, as amended (the “Act”), and the rules and regulations (collectively referred to as the “Rules
and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder, and has
been filed with the Commission. Copies of such registration statement and of each amendment thereto, if any, including the related
preliminary prospectuses, heretofore filed by the Company with the Commission relating to the offering of Registered Securities
have been delivered to the Underwriters. The term “Registration Statement” means such registration statement
on Form S-1 as amended at the time it becomes or became effective, including financial statements, all exhibits and any information
deemed to be included or incorporated by reference therein, including any information deemed to be included pursuant to Rule 430A
or Rule 430B of the Rules and Regulations, as applicable. If the Company files a registration statement to register a portion
of the Registered Securities and relies on Rule 462(b) of the Rules and Regulations for such registration statement to become
effective upon filing with the Commission (the “Rule 462 Registration Statement”), then any reference
to the “Registration Statement” shall be deemed to include the Rule 462 Registration Statement, as amended from
time to time. The term “preliminary prospectus” as used herein means a preliminary prospectus relating to the
offering of Registered Securities as contemplated by Rule 430 or Rule 430A of the Rules and Regulations included at
any time as part of, or deemed to be part of or included in, the Registration Statement. The term “Prospectus”
means the final prospectus relating to the offering of the Registered Securities as first filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations or, if no such filing is required, the form of final prospectus relating to the
offering of Registered Securities included in the Registration Statement at the effective date, except that if any revised prospectus
or prospectus supplement shall be provided to the Representative by the Company for use in connection with the Registered Securities
which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by
the Company pursuant to Rule 424(b)), the term “Prospectus” shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to the Representative for such use. Any reference
herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer to and include: (i) the filing of any document
under the Securities Exchange Act of 1934, as amended, and together with the rules and regulations promulgated thereunder (collectively,
the “Exchange Act”) after the effective date of the Registration Statement, the date of such preliminary prospectus
or the date of the Prospectus, as the case may be, which is incorporated therein by reference, and (ii) any such document so filed.
(b) Effectiveness of Registration. The Registration Statement, any Rule 462 Registration Statement and any post-effective
amendment thereto have been declared effective by the Commission under the Act or have become effective pursuant to Rule 462 of
the Rules and Regulations. The Company has responded to all requests, if any, of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration Statement or any Rule 462 Registration Statement
is in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are
threatened by the Commission.
(c) Accuracy of Registration Statement / 10b-5 Representation. Each of the Registration Statement, any Rule 462 Registration
Statement and any post-effective amendment thereto, at the time it became effective, when any document filed under the Exchange
Act was or is filed and at all subsequent times, complied and will comply in all material respects with the Act and the Rules
and Regulations, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus, as amended or supplemented,
as of its date and at all subsequent times when a prospectus is delivered or required (or, but for the provisions of Rule 172,
would be required) by applicable law to be delivered in connection with sales of Registered Securities, complied and will comply
in all material respects with the Act, the Exchange Act and the Rules and Regulations, and did not or will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made. Each preliminary prospectus (including the preliminary prospectus or prospectuses
filed as part of the Registration Statement or any amendment thereto) complied when so filed in all material respects with the
Act and the Rules and Regulations, and each preliminary prospectus and the Prospectus delivered to the Representative for use
in connection with the offering of the Registered Securities is identical to the electronically transmitted copies thereof filed
with the Commission on XXXXX, except to the extent permitted by Regulation S-T or otherwise necessary for purposes of eliminating
disclosures contained in the preliminary prospectus specific to registration of the resale of the Stockholder Shares (as defined
in the Registration Statement). The foregoing representations and warranties in this Section 3(c) do not apply to any statements
or omissions made in reliance on and in conformity with information relating to the Underwriters furnished in writing to the Company
by the Underwriters through the Representative specifically for inclusion in the Registration Statement or Prospectus or any amendment
or supplement thereto. For all purposes of this Agreement, the information set forth in the Prospectus (i) under the caption “Underwriting”
setting forth the amount of the selling concession, and (ii) under the caption “Underwriting - Stabilization” regarding
stabilization, short positions and penalty bids, constitutes the only information (the “Underwriters’ Information”)
relating to the Underwriters furnished in writing to the Company by the Underwriters through the Representative specifically for
inclusion in the preliminary prospectus, the Registration Statement or the Prospectus.
(d) Company Not Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as of the date of the execution
and delivery of this Agreement (with such date being used as the determination date for purposes of this clause (ii)), the Company
was not and is not an “ineligible issuer” (as defined in Rule 405 of the Rules and Regulations).
(e) Disclosure at the Time of Sale. As of the Applicable Time (as defined below), neither (i) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the most recent preliminary prospectus related to
the offering of the Registered Securities, and the information included on Schedule I hereto, all considered together (collectively,
the “General Disclosure Package”), nor (ii) any individual Issuer Limited Use Free Writing Prospectus (as defined
below), when considered together with the General Disclosure Package, included 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. The preceding sentence does not apply to statements in or omissions from the General Disclosure Package
based upon and in conformity with written information furnished to the Company by the Underwriters through the Representative
specifically for use therein, it being understood and agreed that the only such information furnished by the Underwriters consists
of the Underwriters’ Information.
As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 5:00 p.m. (New York City Time) on [●], 2024 or such other time as agreed by the Company and the Representative.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules
and Regulations, relating to the Public Securities that (i) is required to be filed with the Commission by the Company, (ii) is
“a written communication that is a road show” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description
of the Public Securities or of the offering of the Public Securities 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, as evidenced by its being specified in Schedule I hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the Prospectus Delivery Period (as defined below), does not include any information that conflicts with the information
contained in the Registration Statement. The foregoing sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with the Underwriters’ Information. If at any time following the issuance
of an Issuer Free Writing Prospectus there occurred an event or development as a result of which such Issuer Free Writing Prospectus
conflicted with the information contained in the Registration Statement relating to the Registered Securities or included an untrue
statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in light of
the circumstances prevailing at that subsequent time, not misleading, the Company has promptly notified the Representative and
has promptly amended or supplemented, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(g) Distribution of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the
later of the Closing Date, any Option Closing Date and the completion of the Underwriters’ distribution of the Public Securities,
any offering material in connection with the offering or sale of the Public Securities, the Registration Statement, the preliminary
prospectus, the Permitted Free Writing Prospectuses reviewed and consented to by the Representative and included in Schedule
I hereto, and the Prospectus. None of the Marketing Materials, as of their respective issue dates and at all subsequent times
through the Prospectus Delivery Period (as defined below), include any information that conflicts with the information contained
in the Registration Statement. If at any time following the issuance of any Marketing Material there occurred an event or development
as a result of which such Marketing Material conflicted with the information contained in the Registration Statement relating
to the Public Securities or included an untrue statement of material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances prevailing at that subsequent time, not misleading, the Company
has promptly notified the Representative and has promptly amended or supplemented, at its own expense, such Marketing Material
to eliminate or correct such conflict, untrue statement or omission.
(h) Organization and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority
to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation
nor default of any of the provisions of its certificate or articles of incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity
in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, the Representative’s
Warrants, or any other agreement, document, certificate or instrument required to be delivered pursuant to this Agreement (collectively,
the “Transaction Documents”), (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company, or (iii) a material adverse effect on the Company’s ability
to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse Effect”) and no action, claim, suit or proceeding (including, without limitation, a partial
proceeding, such as a deposition), whether commenced or threatened (each, a “Proceeding”) has been instituted
in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(i) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action
on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals (as hereinafter defined in Section
3(k)). This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, assuming due authorization,
execution and delivery by the other respective parties thereto, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(j) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Registered Securities and the consummation by it of the transactions contemplated
hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any lien, charge, pledge, security
interest, encumbrance, right of first refusal, preemptive right or other similar restriction (each, a “Lien”)
upon any of the properties or assets of the Company, or give to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company
debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected;
except in the case of each of clauses (ii) and (iii), such as would not reasonably be expected to result in a Material Adverse
Effect.
(k) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person (as defined below) in connection with the execution, delivery and performance by the Company of the Transaction
Documents, other than: (i) the filing with the Commission of the Registration Statement and the Prospectus, (ii) application(s)
to the NYSE American LLC (“NYSE American”) for the listing of the Shares for trading thereon in the time and
manner required thereby, (iii) such filings, if any, as are required to be made under applicable state securities laws, (iv) such
notices, filings or authorizations as are required to be obtained or made under applicable rules of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and NYSE American, and (v) such notices, filings or authorizations as have been obtained,
given or made as of the date hereof (collectively, the “Required Approvals”).
(l) Valid Issuance of Securities.
| i. | Outstanding
Securities. All issued and outstanding securities of the Company issued prior to
the transactions contemplated by this Agreement have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no contractual
rights of rescission or the ability to force the Company to repurchase such securities
with respect thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive rights,
rights of first refusal or rights of participation of any holders of any security of
the Company or similar contractual rights granted by the Company. The authorized Common
Stock conform in all material respects to all statements relating thereto contained in
the Registration Statement, the General Disclosure Package and the Prospectus. The offers
and sales of the outstanding Common Stock, options, warrants and other rights to purchase
or exchange such securities for Common Stock were at all relevant times either registered
under the Act and the applicable state securities or “blue sky” laws or,
based in part on the representations and warranties of the purchasers of such Common
Stock, exempt from such registration requirements. Except for the Common Stock and shares
of the Company’s preferred stock, $0.0001 par value per share, as described in
the Registration Statement, the General Disclosure Package and the Prospectus, outstanding
as of the date hereof, the Company has no other shares of any other class of capital
stock outstanding. The description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted thereunder,
as described in the Registration Statement, the General Disclosure Package and the Prospectus,
accurately and fairly present, in all material respects, the information required to
be shown with respect to such plans, arrangements, options and rights. |
| ii. | Securities
Sold Pursuant to this Agreement. The Public Securities and the Representative’s
Warrant Shares have been duly authorized for issuance and sale and, when issued and paid
for, will be validly issued, fully paid and non-assessable; the holders thereof are not
and will not be subject to personal liability by reason of being such holders; the Public
Securities and the Representative’s Warrant Shares are not and will not be subject
to the preemptive rights of any holders of any security of the Company or similar contractual
rights granted by the Company; and all corporate action required to be taken for the
authorization, issuance and sale of the Public Securities and the Representative’s
Warrant Shares has been duly and validly taken. The Common Stock issuable upon exercise
of the Representative’s Warrant have been duly authorized and reserved for issuance
by all necessary corporate action on the part of the Company and when paid for and issued
in accordance with the Representative’s Warrants, as applicable, such Representative’s
Warrant Shares will be validly issued, fully paid and non-assessable. The Public Securities
and the Representative’s Warrant Shares conform in all material respects to all
statements with respect thereto contained in the Registration Statement, the General
Disclosure Package and the Prospectus. |
(m) Capitalization. The capitalization of the Company as of the date hereof is as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus. Except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, the Company has not issued any capital stock, other than pursuant to the Company’s equity incentive
plans, the issuance of shares of Common Stock to employees, directors or consultants pursuant to the Company’s equity incentive
plans and pursuant to the conversion and/or exercise of any securities of the Company which would entitle the holder thereof to
acquire at any time shares of Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or
other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, shares of Common Stock (“Common Stock Equivalents”) and is disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus. Except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, no individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind (each,
a “Person”) has any right of first refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the
Registered Securities and Representative’s Warrants or as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for,
or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings
or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common
Stock Equivalents. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the issuance
and sale of the Public Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person
(other than the Underwriters) and will not result in a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under any of such securities. There are no securities of the Company that have any anti-dilution or similar
adjustment rights (other than adjustments for stock splits, recapitalizations, and the like) to the exercise or conversion price,
have any exchange rights, or reset rights. Except as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, there are no outstanding securities or instruments of the Company that contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem
a security of the Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance in all material respects with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.
(n) Financial Statements. The financial statements of the Company included in the Registration Statement, the General Disclosure
Package and the Prospectus comply in all material respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case
of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described in the
Registration Statement, the General Disclosure Package and the Prospectus conform in all material respects to the descriptions
thereof contained therein and there are no material agreements or other documents required by the Act and the rules and regulations
thereunder to be described in the Registration Statement, the General Disclosure Package and the Prospectus or to be filed with
the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument
(however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that
is referred to in the Registration Statement, the General 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 therefore may be brought.
Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, none of such agreements
or instruments has been assigned by the Company, and neither the Company nor, to the 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. To the best of 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, including, without limitation, those relating to environmental
laws and regulations.
(o) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the Registration Statement, the General Disclosure Package and the Prospectus, (i) there has been no event, occurrence
or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has
not incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in
the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company
has not issued any equity securities to any officer, director or Affiliate (as defined below), except pursuant to existing Company
equity incentive plans or as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. The Company
does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of
the Registered Securities and Representative’s Warrants contemplated by this Agreement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its
respective business, prospects, properties, operations, assets or financial condition that would be required to be disclosed by
the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly
disclosed at least one Trading Day prior to the date that this representation is made.
(p) Litigation. There is no action, suit, inquiry, notice of violation or proceeding pending or, to the knowledge of the Company,
threatened against or affecting the Company, or any of its properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which
(i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Public
Securities or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse
Effect. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company
nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the Act.
(q) Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s employees
is a member of a union that relates to such employee’s relationship with the Company, and the Company is not a party to
a collective bargaining agreement, and the Company believes that its relationships with its employees are good. To the knowledge
of the Company, no executive officer of the Company, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract
or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer
does not subject the Company to any liability with respect to any of the foregoing matters. The Company is in compliance with
all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions
of employment and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(r) Compliance. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company:
(i) is not in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse
of time or both, would result in a default by the Company), the Company has not received notice of a claim that it is in default
under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it
is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is
not in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has
not been in violation of any statute, rule, ordinance or regulation of any governmental authority, including, without limitation,
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as would not reasonably be expected to result in a Material
Adverse Effect.
(s) Environmental Laws. The Company (i) is in compliance in all material respects with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) has received all permits licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) is in compliance with all terms and conditions of any such
permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply or obtain would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(t) Regulatory Permits. The Company possesses all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus, except where the failure to possess such permits would not reasonably be expected
to result in a Material Adverse Effect (“Material Permits”), and the Company has not received any written notice
of proceedings relating to the revocation or modification of any Material Permit.
(u) Title to Assets. The Company has good and marketable title to all real property owned by them, if any, and good and marketable
title in all personal property owned by them, in each case, that is material to the business of the Company, and in such case
free and clear of all Liens, except for Liens that (i) are described in the Registration Statement, the General Disclosure Package
and the Prospectus, (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect,
(iii) do not materially affect the value of such property and do not materially interfere with the use made and proposed to be
made of such property by the Company, or (iv) are for the payment of federal, state or other taxes, for which appropriate reserves
have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any
real property and facilities held under lease by the Company are held by it under valid, subsisting and enforceable leases with
which the Company is in compliance in all material respects.
(v) Intellectual Property. To the knowledge of the Company, the Company has, or has rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in
the Registration Statement, the General Disclosure Package and the Prospectus and which the failure to so have would reasonably
be expected to result in a Material Adverse Effect (collectively, the “Intellectual Property Rights”). The
Company has not received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated
or been abandoned, or is expected to expire or be abandoned, within two (2) years from the date of this Agreement, except where
such action would not reasonably be expected to have a Material Adverse Effect. The Company has not received, since the date of
the latest audited financial statements included within the Registration Statement, the General Disclosure Package and the Prospectus,
a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as would not reasonably be expected to result in a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights. The Company has taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their intellectual properties, except where failure to do so would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company has no knowledge that it lacks or will be unable to obtain
any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(w) Insurance. The Company is insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the business in which the Company is engaged, including, but not limited to, directors
and officers insurance coverage, in such amounts and covering such risks which the Company believes is adequate as is customary
for companies engaged in similar business, and to the Company’s knowledge, all such insurance is in full force and effect.
The Company does not have any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without
a significant increase in cost.
(x) Transactions With Affiliates and Employees. Except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees
of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner,
in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any
stock option plan of the Company.
(y) Xxxxxxxx-Xxxxx; Internal Accounting Controls. The Company is in compliance with any and all applicable requirements of
the Xxxxxxxx-Xxxxx Act of 2002 that are effective and applicable to the Company as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date or the Option Closing Date, as applicable. Except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, the Company maintains a system of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms.
(z) Transactions Affecting Disclosure to FINRA. Except as set forth in the Registration Statement, the General Disclosure Package
and the Prospectus, no brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. To the Company’s knowledge, there are no 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. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any
person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who 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 12-month period prior to the date on which
the Registration Statement was filed with the Commission (the “Filing Date”) or thereafter. 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. To the Company’s knowledge, no (i) officer or director of the Company, (ii) owner of 5% or more of the
Company’s unregistered securities or (iii) owner of any amount of the Company’s unregistered securities acquired within
the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The
Company will advise the Underwriters and their respective counsel if it becomes aware that any officer, director or stockholder
of the Company is or becomes an affiliate or associated person of a FINRA member participating in the offering of the Registered
Securities. All information provided by the Company in its FINRA questionnaire to Representative Counsel specifically for use
by Representative Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct
and complete in all material respects.
(aa) Investment Company. The Company is not, and immediately after receipt of payment for the Public Securities, will not be,
an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(bb) Registration Rights. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus,
no Person has any right to cause the Company to effect the registration under the Act of any securities of the Company.
(cc) Listing and Maintenance Requirements. The Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Shares under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements of NYSE American. The Shares are currently eligible for electronic
transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment
of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic
transfer. The issuance and sale of the Registered Securities hereunder does not contravene the rules and regulations of NYSE American.
(dd) Validity and Binding Effect of Agreements. The execution, delivery and performance of this Agreement and the Representative’s
Warrants has been duly and validly authorized by the Company, and, when executed and delivered, will constitute, the valid and
binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities
laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(ee) D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and Named Executive Officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Insiders as described in the Registration Statement, the General Disclosure
Package and the Prospectus provided to the Underwriters, is true and correct in all material respects and the Company has not
become aware of any information which would cause the information disclosed in the Questionnaires to become materially inaccurate
and incorrect as of the date hereof.
(ff) Solvency. Based on the consolidated financial condition of the Company as of the Closing Date and as of the Option Closing
Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Public Securities hereunder, the
current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, may be insufficient to pay all amounts on or in respect of its liabilities
when such amounts are required to be paid. The Company does not intend to incur further debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). Except as set
forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has no knowledge of any facts
or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date or the Option Closing Date, as applicable. The Registration
Statement, the General Disclosure Package and the Prospectus sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company, or for which the Company has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred
in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness
of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required
to be capitalized in accordance with GAAP. Except as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, the Company is not in default with respect to any Indebtedness.
(gg) Tax Status. Except for matters that would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, the Company (i) has made or filed all United States federal, state and local income and all foreign income
and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports
and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any
such claim.
(hh) Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on
behalf of the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose
fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any provision of Foreign Corrupt Practices Act of 1977, as amended.
(ii) Accountants. The Company’s accounting firm is Xxxxxx LLP (the “Accountants”). To the knowledge
and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(jj) Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Public Securities, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Public Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid
to the Underwriters in connection with the offering of the Public Securities.
(kk) 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 result
in a Material Adverse Change. The Company’s ownership and control of each Subsidiary is as described in the Registration
Statement, the General Disclosure Package and the Prospectus.
(ll) Office of Foreign Assets Control. Neither the Company nor, to the Company’s knowledge, any director, officer, agent
or employee of the Company or any Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with the Company (as such terms are used in and construed under Rule 405 under the Act) (each, an
“Affiliate”) is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”).
(mm) U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the
Representative’s request.
(nn) Bank Holding Company Act. Neither the Company nor any of its controlled Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”), and to regulation by the Board of Governors of the Federal Reserve System
(the “Federal Reserve”). Neither the Company nor any of its controlled Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%)
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its controlled Affiliates exercises a controlling influence over the management or policies of a bank or
any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(oo) Money Laundering. The operations of the Company are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(pp) Share Option Plans. Each share option granted by the Company under the Company’s share option plans was granted (i)
in accordance with the terms of the Company’s share option plans and (ii) with an exercise price at least equal to the fair
market value of the Shares on the date such share option would be considered granted under GAAP and applicable law. No share option
granted under the Company’s share option plan has been backdated. The Company has not knowingly granted, and there is no
and has been no Company policy or practice to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant
of share options with, the release or other public announcement of material information regarding the Company or its financial
results or prospects.
(qq) 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.
(rr) 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 in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including,
but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially
affect the Company’s or its Subsidiaries’ liquidity or the availability of or requirements for their capital resources
required to be described or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus
which have not been described or incorporated by reference as required.
(ss) Loans to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees or indebtedness by the Company or its Subsidiaries to or for the benefit of
any of the officers or directors of the Company, its Subsidiaries, or any of their respective family members, except as disclosed
in the Registration Statement, the General Disclosure Package and the Prospectus.
(tt) Filer Status. As of the time of filing of the Registration Statement, the Company was a “smaller reporting company,”
as defined in Rule 12b-2 of the Exchange Act Regulations. In addition, the Company will promptly notify the Representative if
the Company ceases to be an Emerging Growth Company at any time prior to the end of the period when a prospectus relating to the
Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations, would be) required by
the Securities Act to be delivered in connection with sales of the Public Securities.
(uu) Industry Data. The statistical and market-related data included in each of the Registration Statement, the General 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.
(vv) Dividends and Distributions. Except as disclosed in the General Disclosure Package, the Registration Statement and the
Prospectus, no Subsidiary of the Company is currently prohibited or restricted, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any
loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary of the Company, except as may otherwise be provided in current loan or mortgage-related documents.
(ww) 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 the Registration Statement, the General Disclosure Package or the Prospectus has been made
or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(xx) 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 Act that would require the registration
of the offer and sale of any such securities under the Act.
(yy) Officer’s Certificates. Any certificate signed by any officer of the Company delivered to the Representative or its
counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
4. Covenants of the Company. The Company covenants and agrees with the Underwriters as follows:
(a) Amendments and Supplements to Registration Statement. The Company shall not, either prior to any effective date or thereafter
during such period as the Prospectus is required by law to be delivered (whether physically or through compliance with Rule 172
of the Rules and Regulations or any similar rule) (the “Prospectus Delivery Period”) in connection with sales
of the Public Securities by an Underwriter or dealer, amend or supplement the Registration Statement, the General Disclosure Package
or the Prospectus, unless a copy of such amendment or supplement thereof shall first have been submitted to the Representative
within a reasonable period of time prior to the filing or, if no filing is required, the use thereof and the Representative shall
not have objected thereto in good faith.
(b) Amendments and Supplements to the Registration Statement, the General Disclosure Package, and the Prospectus and Other Act
Matters. During the Prospectus Delivery Period, the Company will comply with all requirements imposed upon it by the Act,
as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far
as necessary to permit the continuance of sales of or dealings in the Public Securities as contemplated by the provisions hereof,
the General Disclosure Package, the Registration Statement and the Prospectus. If, during the Prospectus Delivery Period, any
event or development shall occur or condition exist as a result of which the General Disclosure Package or the Prospectus, as
then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances then prevailing or under which they were made, as the
case may be, not misleading, or if it shall be necessary to amend or supplement the General Disclosure Package or the Prospectus
in order to make the statements therein, in the light of the circumstances then prevailing or under which they were made, as the
case may be, not misleading, or if in the opinion of the Representative it is otherwise necessary to amend or supplement the Registration
Statement, the General Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus,
in order to comply with the Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules, including in connection
with the delivery of the Prospectus, the Company agrees to (i) promptly notify the Representative of any such event or condition
and (ii) promptly prepare (subject to Section 4(a) and 4(f) hereof), file with the Commission (and use its best efforts
to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at
its own expense to the Representative (and, if applicable, to dealers), amendments or supplements to the Registration Statement,
the General Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements
in the General Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances then prevailing
or under which they were made, as the case may be, not misleading, or so that the Registration Statement or the Prospectus, as
amended or supplemented, will comply with the Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules or any
other applicable law.
(c) Notifications to the Underwriters. The Company shall use its best efforts to cause the Registration Statement to become
effective, and shall notify the Representative promptly, and shall confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has become effective and when any post-effective amendment thereto becomes effective,
(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the commencement by the Commission or by any state securities commission of any proceedings for the suspension
of the qualification of any of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose, including, without limitation, the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (iv)
of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made
in the Registration Statement or the Prospectus misleading (including by omission) or untrue or that requires the making of any
changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances
in which they are made, not misleading (including by omission), and (v) of receipt by the Company or any representative of the
Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus
or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement,
the Company shall use best efforts to obtain the withdrawal of such order at the earliest possible moment. The Company shall comply
with the provisions of and make all requisite filings with the Commission pursuant to Rules 424(b), 430A, 430B and 462(b)
of the Rules and Regulations and to notify the Representative promptly of all such filings.
(d) Executed Registration Statement. The Company shall furnish to the Representative, without charge, one signed copy of the
Registration Statement, and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits
thereto, and shall furnish to the Representative, without charge, a copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules but without exhibits.
(e) Undertakings. The Company shall comply with all the provisions of any undertakings contained and required to be contained
in the Registration Statement.
(f) Prospectus. The Company shall prepare the Prospectus in a form approved by the Representative and shall file such Prospectus
with the Commission pursuant to Rule 424(b) of the Rules and Regulations with a filing date not later than the second business
day following the execution and delivery of this Agreement. Promptly after the effective date of the Registration Statement, and
thereafter from time to time during the period when the Prospectus is required (or, but for the provisions of Rule 172 under the
Act, would be required) to be delivered, the Company shall deliver to the Representative, without charge, as many electronic copies
of the Prospectus and any amendment or supplement thereto as the Representative may reasonably request. The Company consents to
the use of the Prospectus and any amendment or supplement thereto by the Representative and by all dealers to whom the Public
Securities may be sold, both in connection with the offering or sale of the Public Securities and for any period of time thereafter
during the Prospectus Delivery Period. If, during the Prospectus Delivery Period any event shall occur that in the judgment of
the Company or counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the
light of the circumstances under which it was made, not misleading (including by omission), or if it is necessary to supplement
or amend the Prospectus to comply with law, the Company shall forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and shall deliver to the Representative, without charge, such number of electronic copies thereof
as the Representative may reasonably request.
(g)
Permitted Free Writing Prospectuses. The Company represents and agrees that it has not made and, unless it obtains
the prior consent of the Representative, will not make, any offer relating to the Public Securities that would constitute a “free
writing prospectus” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission or retained
by the Company under Rule 433 of the Rules and Regulations; provided that the prior written consent of the Representative
hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto.
Any such free writing prospectus consented to by the Representative is herein referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping. If at any time following the issuance of an Issuer Free Writing Prospectus there
occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained
in the Registration Statement relating to the Public Securities or would include an untrue statement of material fact or would
omit to state a material fact necessary in order to make the statements therein, in light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify the Representative 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. The
Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file
with the Commission any electronic road show.
(h)
Compliance with Blue Sky Laws. Prior to any public offering of the Public Securities by the Underwriters, the Company
shall cooperate with the Representative and counsel to the Underwriters in connection with the registration or qualification (or
the obtaining of exemptions from the application thereof) of the Public Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Representative may request limitation, provided, however, that in no event
shall the Company be obligated to qualify a public offering outside the United States or to do business as a foreign corporation
in any jurisdiction where it is not now so qualified, to qualify or register as a dealer in securities, to take any action which
would subject it to general service of process in any jurisdiction where it is not now so subject or subject itself to ongoing
taxation in respect of doing business in any jurisdiction in which it is not so subject.
(i)
Delivery of Financial Statements. During the period of five years commencing on the effective date of the Registration
Statement applicable to the Underwriters, the Company shall furnish to the Representative and each other Underwriter who may so
request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will furnish to the Representative and each other Underwriter who
may so request a copy of each annual or other report it shall be required to file with the Commission; provided, however, that
the availability of electronically transmitted copies filed with the Commission pursuant to XXXXX shall satisfy the Company’s
obligation to furnish copies hereunder.
(j)
Transfer Agent; Transfer Sheets. For a period of five years commencing on the effective date of the Registration
Statement applicable to the Underwriters, the Company shall retain a transfer agent and registrar acceptable to the Representative
(the “Transfer Agent”) and shall furnish to the Representative at the Company’s sole cost and expense
such transfer sheets of the Company’s securities as the Representative may reasonably request, including the daily and monthly
consolidated transfer sheets of the Transfer Agent and DTC. Nevada Agency and Transfer Company is acceptable to the Representative
to act as Transfer Agent for the Common Stock and the Representative’s Warrants.
(k)
Trading Reports. For a period of five years commencing on the effective date of the Registration Statement applicable
to the Underwriters, during such time as the Public Securities are listed on the Exchange, the Company shall provide to the Representative,
at the Company’s expense, such reports published by the Exchange relating to price trading of the Public Securities, as the
Representative shall reasonably request.
(l)
Availability of Earnings Statements. The Company shall make generally available to holders of its securities as soon
as may be practicable but in no event later than the last day of the fifteenth (15th) full calendar month following
the calendar quarter in which the most recent effective date occurs in accordance with Rule 158 of the Rules and Regulations, an
earnings statement (which need not be audited but shall be in reasonable detail) for a period of twelve (12) months ended commencing
after the effective date, and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules
and Regulations).
(m)
Consideration; Payment of Expenses. In consideration of the services to be provided for hereunder, the Company shall
pay to the Underwriters or their respective designees their pro rata portion (based on the Public Securities purchased) of the
following aggregate compensation with respect to the Public Securities they are offering:
1)
An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the offering of Public Securities;
provided, however, that no discount or commission will be payable by the Company in respect of Firm Shares issued in satisfaction
of the Director Note and/or Investor Note (each as defined in the Registration Statement);
2)
The Representative’s Warrants;
3)
Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of eighteen
(18) months from the closing of the Offering to act as sole managing underwriter and sole book runner for any and all future public
or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company, or any successor
to the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative
fails to accept in writing any such proposal within ten (10) business days after receipt of such written notice, then the Representative
will have no claim or right with respect to any such offering(s); and
4)
Subject to FINRA Rule 5110(g)(5)(B), the Representative shall be entitled to compensation under Section 4(m)(1) hereof,
calculated in the manner set forth therein, with respect to any public or private offering of securities or other financing or
capital-raising transaction of any kind (“Tail Financing”) to the extent that such financing or capital is provided
to the Company by investors whom the Representative had contacted during the Engagement Period (excluding any financing or capital
provided to the Company by investors whom the Company introduced to the Representative, as listed on Schedule B, attached
hereto) or introduced to the Company during the Engagement Period, if such Tail Financing is consummated at any time within the
twelve (12)-month period following the expiration or termination of that certain engagement agreement by and between the Company
and the Representative, dated as of December 8, 2023 (“Engagement Agreement”). If the Tail Financing is not
an underwritten offering, the amount of the underwriting discount specified in Section 4(m)(1) shall be paid by the Company to
the Representative as a cash fee from the proceeds of the Closing. “Engagement Period” shall mean the period
beginning on December 8, 2023, and ending on the earliest of (i) December 8, 2024, or (ii) the date that the Company terminates
the Engagement Agreement pursuant to the terms therein.
5)
The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein
in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in
excess of FINRA rules or that the terms thereof require adjustment.
6)
Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated
or this Agreement is terminated, the Company hereby agrees to pay the following:
(1) all
expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers;
(2) all
filing fees in connection with filings with FINRA’s Public Offering System;
(3) all
fees, disbursements and expenses of the Company’s counsel, accountants and other agents and representatives in connection
with the registration of the Registered Securities under the Act and the offering of the Public Securities;
(4) all
expenses in connection with the qualifications of the Public Securities for offering and sale under state or foreign securities
or blue sky laws (including, without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’
counsel;
(5) all
fees and expenses in connection with listing the Shares on a national securities exchange;
(6) all expenses,
including travel and lodging expenses, of the Company’s officers, directors and employees and any other expense of the Company
incurred in connection with attending or hosting meetings with prospective purchasers of the Public Securities and any fees and
expenses associated with the i-Deal system and NetRoadshow;
(7) any stock
transfer taxes or other taxes incurred in connection with this Agreement or the offering, including any stock transfer taxes payable
upon the transfer of securities to the Underwriters;
(8) the costs
associated with preparing, printing and delivering certificates representing the Public Securities;
(9) the cost
and charges of any transfer agent or registrar for the Public Securities;
(10) subject
to the following proviso, other costs (including Underwriters’ counsel’s fees and expenses) and expenses incident to
the offering of Public Securities that are not otherwise specifically provided for in this Section 4(m);
(11) costs relating
to background checks of the Company’s officers and directors;
provided, however,
that all such Underwriters’ fees and expenses that are incurred by the Underwriters and for which the Company shall be responsible
shall not exceed $100,000 in the aggregate in the event of a closing of the offering of Public Securities, inclusive of (1) any
legal fees and expenses and (2) any advance for accountable expenses previously paid by the Company to the Representative (the
“Advance”). 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).
(n) Non-accountable
Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 4(m), on the Closing Date
it shall pay to the Representative, by deduction from the net proceeds of the offering of Public Securities, a non-accountable
expense allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Shares (excluding
the Option Shares), provided, however, that in the event that the offering of Public Securities is terminated, the Company
agrees to reimburse the Underwriters pursuant to Section 4(o) hereof.
(o) Reimbursement
of Expenses upon Termination of Agreement. If this Agreement shall be terminated by the Company pursuant to any of the provisions
hereof or if for any reason the Company shall be unable to perform its obligations or to fulfill any conditions hereunder, or if
the Underwriters shall terminate this Agreement pursuant to the last paragraph of Section 5, Section 7(a), Section 7(e)
or Section 7(f), the Company shall reimburse the Underwriters for all reasonable accountable out-of-pocket expenses (including
the reasonable fees, disbursements and other charges of counsel to the Underwriter) actually incurred by the Underwriters in connection
herewith and as allowed under FINRA Rule 5110.
(p) No
Stabilization or Manipulation. The Company shall not at any time, directly or indirectly, take any action intended to cause
or result in, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation,
under the Act or otherwise, of the price of the Shares to facilitate the sale or resale of any of the Public Securities.
(q) Use
of Proceeds. The Company shall apply the net proceeds from the offering and sale of the Public Securities to be sold by the
Company in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds” and shall
file such reports with the Commission with respect to the sale of the Public Securities and the application of the proceeds therefrom
as may be required in accordance with Rule 463 under the Act.
(r) Lock-Up
Agreements of Company, Management and Stockholders. The Company shall not, for a period of one hundred and eighty (180) days
after the Closing Date (the “Lock-Up Period”), without the prior written consent of the Representative (which
consent may be withheld in its sole discretion), (1) 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, or file with the Commission a registration statement under the Act to register, any shares of Common
Stock, warrants, or any securities convertible into or exercisable or exchangeable for shares of Common Stock or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic
benefits or risks of ownership of Shares, whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Shares or other securities, in cash or otherwise, or publicly disclose the intention to enter into any transaction
described in clause (1) or (2) above. The foregoing sentence shall not apply to (A) the Public Securities to be sold pursuant to
the Registration Statement (including, but not limited to, the shares of Common Stock to be issued in satisfaction of the Investor
Note and Director Note), (B) the Representative’s Warrants and the Representative’s Warrant Shares, (C) the entry into
any equity line of credit (an “ELOC”) with the holder of the Investor Note subsequent to the Closing Date, issuing
any commitment shares to the holder of the Investor Note in connection with the ELOC, or issuing/and or selling shares of Common
Stock thereunder, (D) the issuance of shares of Common Stock upon the exercise or conversion of options, warrants or convertible
securities outstanding, and as in effect, on the date of this Agreement,
(E) the issuance of preferred stock upon close of the offering of Public Securities, and the issuance of shares of Common Stock
upon the conversion of such preferred stock, in each case, as contemplated in the Registration Statement; (F) the issuance of shares
of Common Stock held by existing stockholders of the Company, including shares of Common Stock underlying warrants, stock options
and other derivative securities to acquire the Company’s Common Stock, pursuant to one or more resale registration statements
on Form S-1, pursuant to the Company’s obligations as disclosed in the Registration Statement; or (G) any shares, dividend
equivalent rights or other equity based awards issued, or options to purchase shares granted, pursuant to existing employee benefit
plans of the Company referred to in the Registration Statement, the General Disclosure Package or the Prospectus (including the
filing of a registration statement on Form S-8 relating to such existing employee benefit plans of the Company referred to in the
Registration Statement, the General Disclosure Package or the Prospectus). The Company has caused each of its officers,
directors and all holders of 5% or more of its capital stock prior to the offering of Public Securities to enter into agreements
with the Representative in the form set forth in Exhibit A.
(s) Lock-Up
Releases. If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up
letter described in the final sentence of Section 4(r) for an officer or director of the Company and provides the Company with
notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the
Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto
through a major news service at least two business days before the effective date of such release or waiver, or any other method
that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release
or waiver.
(t) NYSE
American Listing. The Company will use its reasonable best efforts to effect and maintain the listing of the Shares on the
NYSE American for at least three (3) years after the Closing Date.
(u) Registration
Under the Act. The Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement
and a current Prospectus relating thereto for as long as the Representative’s Warrants remain outstanding. During any period
when the Company fails to have maintained an effective Registration Statement or a current Prospectus relating thereto and a holder
of Representative’s Warrants desires to exercise such warrant and, in the opinion of counsel to the holder, Rule 144 is not
available as an exemption from registration for the resale of the Representative’s Warrant Shares, the Company shall promptly
file a registration statement registering the resale such securities and use its reasonable best efforts to have it declared effective
by the Commission within thirty (30) days.
(v) Testing-the-Waters
Communications. Except with respect to communications made prior to the engagement of the Representative, the Company has not
distributed and, prior to the later to occur of the Closing Date and completion of distribution of the Public Securities, will
not distribute any offering materials in connection with the offering and sale of the Public Securities, other than the General
Disclosure Package, the Prospectus and, subject to compliance with Section 4(g), any Permitted Free Writing Prospectus. The Company
(a) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent
of the Representative 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 (b) has not authorized
anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms 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 I 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 Act.
(w) Press
Releases. Prior to the Closing Date and any Option 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.
(x) [Reserved].
(y) IRS
Forms. If requested by the Representative, the Company shall deliver to each Underwriter (or its agent), prior to or at the
Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8,
as appropriate, together with all required attachments to such form.
(z) Xxxxxxxx-Xxxxx.
The Company shall at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(aa) Accountants.
As of the date of this Agreement, the Company has retained an independent registered public accounting firm, as required by the
Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board, reasonably acceptable to the
Representative, and the Company shall continue to retain an independent registered public accounting firm for a period of at least
three (3) years after the date of this Agreement. The Representative acknowledges that the Accountant is acceptable to the Representative.
(bb) Variable
Rate Transactions. From the date hereof through and including the one year anniversary of the Closing Date, neither the Company
nor any Subsidiary shall enter into, announce the entering into, or proposed entering into, a Variable Rate Transaction without
the Representative’s prior consent. For purposes hereof, a “Variable Rate Transaction” shall mean, a Variable
Priced Equity Linked Instrument, which does not include an Equity Line of Credit or similar agreement. For purposes hereof, “Equity
Line of Credit” means any transaction involving a written agreement between the Company and an investor or underwriter
whereby the Company has the right to “put” its securities to the investor or underwriter over an agreed period of time
and at future determined price or price formula (other than customary “preemptive” or “participation” rights
or “weighted average” or “full-ratchet” anti-dilution provisions or in connection with fixed-price rights
offerings and similar transactions that are not Variable Priced Equity Linked Instruments), and “Variable Priced Equity
Linked Instruments” means: (A) any debt or equity securities which are convertible into, exercisable or exchangeable
for, or carry the right to receive additional Shares either (1) at any conversion, exercise or exchange rate or other price that
is based upon and/or varies with the trading prices of or quotations for Shares at any time after the initial issuance of such
debt or equity security, or (2) with a conversion, exercise or exchange price that is subject to being reset on more than one occasion
at some future date at any time after the initial issuance of such debt or equity security due to a change in the market price
of the Shares since date of initial issuance (other than customary “preemptive” or “participation” rights
or “weighted average” or “full-ratchet” anti-dilution provisions or in connection with fixed-price rights
offerings and similar transactions), and (B) any amortizing convertible security which amortizes prior to its maturity date, where
the Company is required or has the option to (or any investor in such transaction has the option to require the Company to) make
such amortization payments in Shares which are valued at a price that is based upon and/or varies with the trading prices of or
quotations for Shares at any time after the initial issuance of such debt or equity security (whether or not such payments in stock
are subject to certain equity conditions). For the avoidance of doubt, the foregoing shall not prevent the Company from conducting
“at-the-market” offerings or similar equity distribution programs, and shall not prevent the Company from fulfilling
its obligations in respect of securities of the Company outstanding on the date of this Agreement or to be issued in connection
with the close of the offering of Public Securities, in each case, as disclosed in the Registration Statement.
5. Conditions
of the Obligations of the Underwriters. The obligation of the Underwriters to purchase the Firm Shares on the Closing Date
or the Option Shares on the Option Closing Date, as the case may be, as provided herein is subject to the accuracy of the representations
and warranties of the Company, the performance by the Company of its covenants and other obligations hereunder and to the following
additional conditions:
(a) Post
Effective Amendments and Prospectus Filings. Notification that the Registration Statement has become effective shall be received
by the Representative not later than 4:30 p.m., New York City time, on the date of this Agreement or at such later date and time
as shall be consented to in writing by the Representative and all filings made pursuant to Rules 424, 430A, or 430B of the Rules
and Regulations, as applicable, shall have been made or will be made prior to the Closing Date in accordance with all such applicable
rules.
(b) No
Stop Orders, Requests for Information and No Amendments. (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be pending or are, to the knowledge of the Company,
threatened by the Commission, (ii) no order suspending the qualification or registration of the Public Securities under the securities
or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened
or contemplated by the authorities of any such jurisdiction, (iii) any request for additional information on the part of the staff
of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or such
authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have
been filed unless a copy thereof was first submitted to the Representative and the Representative did not object thereto in good
faith, and the Representative shall have received certificates, dated the Closing Date and the Option Closing Date and signed by
the Chief Executive Officer or the Chairman of the Board of Directors and the Chief Financial Officer of the Company in their capacities
as such, and not individually, (who may, as to proceedings threatened, certify to their knowledge), to the effect of clauses (i),
(ii) and (iii).
(c) No
Material Adverse Effects. Since the respective dates as of which information is given in the Registration Statement and the
Prospectus, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus (i) there shall
not have been a Material Adverse Effect, (ii) the Company shall not have incurred any material liabilities or obligations, direct
or contingent, (iii) the Company shall not have entered into any material transactions not in the ordinary course of business other
than pursuant to this Agreement and the transactions referred to herein, (iv) the Company shall not have issued any securities
(other than the securities or the shares issued in the ordinary course of business pursuant to existing employee benefit plans
of the Company referred to in the Registration Statement, General Disclosure Package and the Prospectus) or declared or paid any
dividend or made any distribution in respect of its capital stock of any class or debt (long-term or short-term), and (v) no material
amount of the assets of the Company shall have been pledged, mortgaged or otherwise encumbered.
(d) No
Actions, Suits or Proceedings. Since the respective dates as of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, there shall have been no actions, suits or proceedings instituted, or to the Company’s
knowledge, threatened against or affecting, the Company or any of its officers in their capacity as such, before or by any federal,
state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign.
(e) All
Representations True and Correct and All Conditions Fulfilled. Each of the representations and warranties of the Company contained
herein shall be true and correct as of the date of the Agreement and at the Closing Date as if made at the Closing Date and any
Option Closing Date, as the case may be, and all covenants and agreements contained herein to be performed by the Company and all
conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and any Option Closing
Date, shall have been duly performed, fulfilled or complied with.
(f) Opinions
of Counsel to the Company. The Underwriters shall have received the opinions and negative assurance letters, each dated the
Closing Date and any Option Closing Date, as the case may be, each reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters, from Xxxxxxxx & Worcester LLP (“Company Counsel”), as corporate/securities counsel.
(g) Opinion
of Counsel to the Underwriters. The Representative shall have received an opinion, dated the Closing Date and any Option Closing
Date, as the case may be, from Xxxxxx, Xxxxxx & Xxxxxxxx, LLP (“Representative Counsel”), securities counsel to
the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinions shall be satisfactory
in all respects to the Representative.
(h) Accountants’
Comfort Letter. On the date of the Prospectus, the Representative shall have received from the Accountants a letter dated the
date of its delivery, addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative and counsel
to the Underwriters, containing statements and information of the type ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement
and the Prospectus. At the Closing Date and any Option Closing Date, as the case may be, the Representative shall have received
from the Accountants a letter dated such date, in form and substance reasonably satisfactory to the Representative and counsel
to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to the preceding
sentence and have conducted additional procedures with respect to certain financial figures included in the Prospectus, except
that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior
to the Closing Date or any Option Closing Date, as the case may be.
(i) Officers’
Certificates. At the Closing Date and any Option Closing Date, there shall be furnished to the Representative an accurate certificate,
dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in
their capacities as such, and not individually, in form and substance satisfactory to the Representative and counsel to the Underwriters,
to the effect that:
1) such
officers have carefully examined the Registration Statement, the General Disclosure Package, any Issuer Free Writing Prospectus
and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and
as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date) did not include any untrue statement
of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option
Closing Date if such date is other than the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing
Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement
thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the
Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances in which they were made, not misleading;
2) since
the Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement,
the General Disclosure Package or the Prospectus;
3) as
of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties
of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is
other than the Closing Date);
4) there
has not been, subsequent to the date of the most recent audited financial statements included in the General Disclosure Package,
a Material Adverse Change.
(j) Secretary’s
Certificate. At each of the Closing Date and Option Closing Date, if any, the Representative shall have received a certificate
of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively,
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 relating
to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the
Company. The documents referred to in such certificate shall be attached to such certificate.
(k) Transfer
Agent’s Certificate. The Company’s transfer agent shall have furnished or caused to be furnished to the Representative
a certificate satisfactory to the Representative of one of its authorized officers with respect to the issuance of the Shares and
such other customary matters related thereto as the Representative may reasonably request.
(l) Eligible
for DTC Clearance. At or prior to the Closing Date and each Option Closing Date, the Shares shall be eligible for clearance
and settlement through the facilities of the DTC.
(m) Lock-Up
Agreements. At the date of this Agreement, the Representative shall have received the executed “lock-up” agreements
referred to in Section 4(r) hereof from the Company’s directors, executive officers, and all holders of 5% or more of the
Company’s capital stock prior to the offering of Public Securities.
(n) Representative’s
Warrants. On the Closing Date and each Option Closing Date, as applicable, the Company shall have delivered to the Representative
executed copies of the Representative’s Warrants.
(o) Compliance
with Blue Sky Laws. The Public Securities shall be qualified for sale in such states and jurisdictions as the Representative
may reasonably request, including, without limitation, qualification for exemption from registration or prospectus delivery requirements
in the provinces and territories of Canada and other jurisdictions outside the United States, and each such qualification shall
be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(p) Stock
Exchange Listing. The Shares shall have been duly authorized for listing on the NYSE American, subject to official notice of
issuance.
(q) Exchange
Act Registration. One or more registration statements in respect of the Shares have been filed on Form 8-A pursuant to Section
12(b) of the Exchange Act, each of which registration statement complies in all material respects with the Exchange Act.
(r) Good
Standing. On the date of the commencement of sales of Public Securities under this Offering, and at the Closing Date and any
Option Closing Date, the Company shall have furnished to the Representative satisfactory evidence of the good standing of the Company,
in its jurisdictions of organization (to the extent the concept of “good standing” or such equivalent concept exists
under the laws of the applicable jurisdictions) and its good standing as foreign entities in such other jurisdictions as the Representative
may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions. If the applicable jurisdiction does not have a concept of “good standing,” the Company will
furnish evidence in writing or any standard form of telecommunication from the appropriate governmental authorities that the relevant
company was duly incorporated and remains duly registered in the jurisdiction of its incorporation.
(s) Company
Certificates. The Company shall have furnished to the Representative such certificates, in addition to those specifically mentioned
herein, as the Representative may have reasonably requested as to the accuracy and completeness at the Closing Date and any Option
Closing Date of any statement in the Registration Statement, the General Disclosure Package or the Prospectus, as to the accuracy
at the Closing Date and any Option Closing Date of the representations and warranties of the Company herein, as to the performance
by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriters.
(t) 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 Public Securities.
If any of the conditions
hereinabove provided for in this Section 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the Representative by notifying the Company of such termination
in writing at or prior to the Closing Date or any Option Closing Date, as the case may be.
6. Indemnification.
(a) Indemnification
of the Underwriters. The Company shall indemnify and hold harmless each Underwriter, its affiliates, the directors, officers,
employees and agents of such Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, liabilities, expenses and damages (including
any and all investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party
and any third party, or otherwise, or any claim asserted), to which they, or any of them, may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), including the information deemed to be a part of the Registration
Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations,
as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, any preliminary prospectus supplement, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any
untrue statement or alleged untrue statement of a material fact contained in any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the offering of the Public Securities, including any
roadshow or investor presentations made to investors by the Company (whether in person or electronically) (collectively, Marketing
Materials”) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iv) in whole or in part any inaccuracy
in any material respect in the representations and warranties of the Company contained herein; provided, however,
that the Company shall not be liable to the extent that such loss, claim, liability, expense or damage is based on any untrue statement
or omission or alleged untrue statement or omission made in reliance on and in conformity with Underwriters’ Information.
This indemnity agreement will be in addition to any liability that the Company might otherwise have.
(b) Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its affiliates,
the directors, officers, employees and agents of the Company and each other person or entity, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, liabilities, claims, damages
and expenses whatsoever, as incurred (including but not limited to reasonable attorneys’ fees and any and all reasonable
expenses whatsoever, incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and
430B of the Rules and Regulations, any Preliminary Prospectus, the Prospectus, or any amendment or supplement to any of them, or
arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense (or action in respect thereof) arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon the Underwriters’ Information; provided,
however, that in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discount
and commissions applicable to the Public Securities purchased by such Underwriter hereunder. The parties agree that such information
provided by or on behalf of the Underwriters through the Representative consists solely of the material referred to in the last
sentence of Section 3(c) hereof.
(c) Indemnification
Procedures. Any party that proposes to assert the right to be indemnified under this Section 6 shall, promptly after
receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 6, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party shall not relieve the indemnifying party from
any liability that it may have to any indemnified party under the foregoing provisions of this Section 6 unless, and only
to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying
party similarly notified, to assume the defense of the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable out-of-pocket
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (i) the employment of counsel by the indemnified party has been authorized in writing
by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from
or in addition to those available to the indemnifying party, (iii) the indemnified party has reasonably concluded that a conflict
or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified
party), (iv) the indemnifying party does not diligently defend the action after assumption of the defense, or (v) the indemnifying
party has not in fact employed counsel satisfactory to the indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel shall be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges shall be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party shall not be liable for any settlement of any action or claim effected
without its written consent (which consent will not be unreasonably withheld or delayed). No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters contemplated by this Section 6 (whether or not any indemnified
party is a party thereto), unless (x) such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or proceeding 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 indemnified party, and (y) the indemnifying
party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment. Notwithstanding
the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated
by Section 6(a) effected without its written consent if (A) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (B) such indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for any reason is held to be unavailable, the
Company and the Underwriters shall contribute to the total losses, claims, liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the Company from persons other than the Underwriters, such
as persons who control the Company within the meaning of the Act, officers of the Company who signed the Registration Statement
and directors of the Company, who may also be liable for contribution), to which the Company and the Underwriter may be subject
in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Public Securities pursuant to this Agreement. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as (x) the total proceeds from the offering of Public Securities
(net of underwriting discount and commissions but before deducting expenses) received by the Company bears to (y) the underwriting
discount and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus.
If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
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 which resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such 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 6(d) were to be determined by pro rata allocation or by any other method
of allocation (even if the Underwriters were treated as one entity for such purpose) which 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, liability,
expense or damage, or action in respect thereof, referred to above in this Section 6(d) shall be deemed to include, for purpose
of this Section 6(d), 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 6(d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions received by it. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, and each director, officer, employee, counsel
or agent of an Underwriter will have the same rights to contribution as such Underwriter, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have under this Section 6(d). The obligations of the Underwriters to contribute pursuant
to this Section 6(d) are several in proportion to the respective number of Public Securities to be purchased by each of the Underwriters
hereunder and not joint. No party will be liable for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) Survival.
The indemnity and contribution agreements contained in this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or
on behalf of any Underwriter or any controlling Person thereof, (ii) acceptance of any of the Public Securities and payment therefor
or (iii) any termination of this Agreement.
7. Termination.
The obligations of the Underwriters under this Agreement may be terminated at any time prior to the Closing Date (or, with respect
to the Option Shares, on or prior to the Option Closing Date), by notice to the Company from the Representative, without liability
on the part of the Underwriters to the Company, if, prior to delivery and payment for the Firm Shares (or the Option Shares, as
the case may be), in the sole judgment of the Representative, any of the following shall occur:
(a) trading
or quotation in any of the equity securities of the Company shall have been suspended or limited by the Commission, NYSE American
or by an exchange or otherwise;
(b) trading
in securities generally on the New York Stock Exchange, the NYSE American, the NASDAQ Capital Market, the NASDAQ Global Market,
the NASDAQ Global Select Market shall have been suspended or limited or minimum or maximum prices shall have been generally established
on such exchange, or additional material governmental restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of the Commission or any court or other governmental
authority;
(c) a
general banking moratorium shall have been declared by any of U.S. federal or New York authorities;
(d) the
United States shall have become engaged in new hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred
such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result
of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United
States shall be such), or any other calamity or crisis shall have occurred, the effect of any of which is such as to make it impracticable
or inadvisable to market the Shares on the terms and in the manner contemplated by the Prospectus;
(e) the
Company shall have sustained a loss material or substantial to the Company by reason of flood, fire, accident, hurricane, earthquake,
theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, the effect of any of which
is such as to make it impracticable or inadvisable to market the Public Securities on the terms and in the manner contemplated
by the Prospectus; or
(f) there
shall have been a Material Adverse Effect.
8. Underwriter
Default.
(a) If
any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, the Representatives
may in their discretion arrange for the Representatives or another party or other parties satisfactory to the Company to purchase
such Firm Shares on the terms contained herein. If within three (3) Trading Days after such default by any Underwriter the Representatives
do not arrange for the purchase of such Firm Shares, then the Company shall be entitled to a further period of three (3) Trading
Days within which to procure another party or other parties satisfactory to the Representatives to purchase such Firm Shares on
such terms.
(b) If,
after giving effect to any arrangements for the purchase of Firm Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the Firm Shares with respect to which such default relates (the “Default
Securities”) do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b)
below) exceed in the aggregate 10% of the number of the Firm Shares, then each non-defaulting Underwriter, acting severally and
not jointly, agrees to purchase from the Company that number of Default Securities that bears the same proportion to the total
number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter
on Schedule A hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters;
subject, however, to such adjustments to eliminate fractional shares as the Representative in its discretion shall make.
(c) If,
after giving effect to any arrangements for the purchase of Firm Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of Default Securities exceeds 10% of the number of Firm
Shares, then the Representatives may in their discretion arrange for themselves or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) satisfactory to the Company to purchase the Default Securities on the
terms contained herein. In the event that within five (5) calendar days after such a default the Representative does not arrange
for the purchase of the Default Securities as provided in this Section 8, this Agreement shall thereupon terminate, without liability
on the part of the Company with respect thereto (except in each case as provided in Sections 4(m), 6 and 8) or the Underwriters,
but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the
other Underwriters and the Company for damages occasioned by its or their default hereunder.
(d) In
the event that any Default Securities are to be purchased by the non-defaulting Underwriters, or are to be purchased by another
party or parties as aforesaid, the Representatives or the Company shall have the right to postpone the Closing Date for a period,
not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement
or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement
to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters’ Counsel, may be necessary
or advisable. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section
8 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares.
9. Miscellaneous.
(a) 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 (email) and confirmed and shall be
deemed given when so delivered or sent via email and confirmed or if mailed, two (2) days after such mailing. Any notice under
Section 6 hereof may be made by telecopy or telephone, but if so made shall be subsequently
confirmed in writing.
If to the Representative:
A.G.P./ALLIANCE GLOBAL
PARTNERS
000 Xxxxxxx Xxxxxx,
00xx Xxxxx
New York, New York
10022
Attn: Xxxxxx Xxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx
with a copy (which
shall not constitute notice) to:
Xxxxxx, Xxxxxx &
Xxxxxxxx, LLP
000 Xxxx Xxxxxx Xxxxx,
00xx Floor
Costa Mesa, CA 92626
Attention: Xxxxxx X.
Xxxxxxx, Esq., Xxxxxxxx Xxx, Esq.
Email: xxxxxxxx@xxxxxx.xxx;
xxxx@xxxxxx.xxx
If to the Company:
Chromocell Therapeutics
Corporation
0000 Xxxxx 0 Xxxxx,
Xxxxx 0000
Freehold, NJ 07728
Attention: Xxxxxxx
Xxxxxxxx XX, Chief Executive Officer
Email: Xxxxx@xxxxxxxxxx.xxx
with a copy (which
shall not constitute notice) to:
Xxxxxxxx & Worcester
LLP
1633 Broadway
New York, NY 10019
Attention: Xxxxx X.
Xxxxxxxxx, Esq., Xxxxxxx X. Xxxxxxxx, Xx., Esq.
Email: xxxxxxxxxx@xxxxxxxxxxx.xxx;
xxxxxxxxx@xxxxxxxxxxx.xxx
(b) No
Third Party Beneficiaries. This Agreement has been and is made solely for the benefit of the Underwriters, the Company and,
with respect to Section 6, the controlling persons, directors, officers, employees, counsel and agents referred to in Section 6
hereof, and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement. The term “successors and assigns” as used in this Agreement shall not include a purchaser of Public
Securities from any Underwriter in his, her or its capacity as such a purchaser, as such purchaser of Public Securities from such
Underwriter.
(c) Survival
of Representations and Warranties. All representations, warranties and agreements of the Company contained herein or in certificates
or other instruments delivered pursuant hereto shall remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriters or any of their controlling persons and shall survive delivery of and payment for the
Public Securities hereunder.
(d) Disclaimer
of Fiduciary Relationship. The Company acknowledges and agrees that (i) the purchase and sale of the Public Securities pursuant
to this Agreement, including the determination of the public offering price of the Public Securities and any related discounts
and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters, on
the other hand, (ii) in connection with the offering of Public Securities contemplated by this Agreement and the process leading
to such transaction, the Underwriters are and have been acting pursuant to a contractual relationship created solely by this Agreement
and are not agents or fiduciaries of the Company or its securityholders, creditors, employees or any other party, (iii) no Underwriter
has assumed nor will it assume any advisory or fiduciary responsibility in favor of the Company with respect to the offering of
the Public Securities contemplated by this Agreement or the process leading thereto (irrespective of whether such Underwriter or
its affiliates has advised or is currently advising the Company on other matters) and each such Underwriter has no obligation to
the Company with respect to the offering of the Public Securities contemplated by this Agreement except the obligations expressly
set forth in this Agreement, (iv) the Underwriters and their affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) no Underwriter has provided any legal, accounting, regulatory or tax advice
with respect to the offering of Public Securities contemplated by this Agreement and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
(e) Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(f) Submission
to Jurisdiction. The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or United States federal
court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating to
this Agreement, the Disclosure Package, the Prospectus, the Registration Statement, or the offering of the Registered Securities.
The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire
any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect
to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of
any such suit, action or proceeding including without limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities
Act of 1976, as amended. Each of the Underwriters and the Company further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the Supreme Court of the State of New York, New York County,
or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company
mailed by certified mail or delivered by Federal Express via overnight delivery to the Company’s address shall be deemed
in every respect effective service of process upon the Company in any such suit, action or proceeding, and service of process upon
an Underwriter mailed by certified mail or delivered by Federal Express via overnight delivery to the Underwriters’ address
shall be deemed in every respect effective service of process upon such Underwriter in any such suit, action or proceeding.
(g) Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with
such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation
of the Company with respect to any sum due from it to an Underwriter or any person controlling such Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by
such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling
person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United
States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, the Company
agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against
such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling
person hereunder, such Underwriter or controlling person agrees to pay to the Company an amount equal to the excess of the dollars
so purchased over the sum originally due to such Underwriter or controlling person hereunder.
(h) Counterparts.
This Agreement may be signed in two or more counterparts with the same effect as if the signatures thereto and hereto were upon
the same instrument.
(i) Survival
of Provisions Upon Invalidity of Any Single Provision. In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
(j) Waiver
of Jury Trial. The Company and each Underwriter each hereby irrevocably waive any right they may have to a trial by jury in
respect of any claim based upon or arising out of this Agreement or the transactions contemplated hereby.
(k) Titles
and Subtitles. The titles of the sections and subsections of this Agreement are for convenience and reference only and are
not to be considered in construing this Agreement.
(l) 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.
(m) Entire
Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof. This Agreement may not be amended or otherwise modified or
any provision hereof waived except by an instrument in writing signed by the parties hereto.
[Signature page follows]
If the foregoing correctly
sets forth your understanding, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute
a binding agreement among us.
Accepted by the Representatives, acting
for themselves and as
Representatives of the Underwriters named
on Schedule A hereto,
as of the date first written above:
Alliance
Global Partners,
| By: | |
|
| | Name:
Xxxxxx Xxxxxxx |
|
| | Title:
Managing Director |
|
SCHEDULE
A
| Name of Underwriter |
Number of Firm Shares Being Purchased |
Number of Option Shares To Be Purchased if the Option is Fully Exercised |
| A.G.P./Alliance Global Partners |
|
|
| |
|
|
| |
|
|
| Total |
|
|
SCHEDULE
B
| 5. | All existing investors of the Company |
SCHEDULE
I
ISSUER FREE WRITING
PROSPECTUSES AND WRITTEN TESTING-THE-WATERS COMMUNICATIONS
SCHEDULE
II
| 1. | Number of Firm Shares: [●] |
| 2. | Number of Option Shares: [●] |
| 3. | Public Offering Price per Share: $[●] |
| 4. | Underwriting Discount per Share: $[●] |
EXHIBIT
A
LOCK-UP AGREEMENT
[●],
2024
A.G.P./
Alliance Global Partners
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
New
York, NY 10022
Re: Chromocell
Therapeutics Corporation
Ladies
and Gentlemen:
As
an inducement to A.G.P./ Alliance Global Partners, as representative of the underwriters (the “Representative”),
to execute an underwriting agreement (the “Underwriting Agreement”) providing for a public offering
(the “Offering”) of securities including the common stock, par value $0.0001 per share (the “Shares”),
of Chromocell Therapeutics Corporation, a Delaware corporation (the “Company”), the undersigned hereby
agrees that without, in each case, the prior written consent of the Representative, during the period specified in the second
succeeding paragraph (the “Lock-Up Period”), the undersigned will not (1) offer, pledge, announce the
intention to sell, 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, make any short sale or otherwise transfer or dispose of, directly or indirectly, any
Shares or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Shares (including,
without limitation, Shares which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations
of the U.S. Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise
of a stock option or warrant) whether now owned or hereafter acquired (the “Undersigned’s Securities”)
or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership
of the Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery
of Shares or such other securities, in cash or otherwise. The foregoing restriction is expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result
in a sale or disposition of the Undersigned’s Securities even if such Undersigned’s Securities would be disposed of
by someone other than the undersigned. Such prohibited hedging or other transactions would include, without limitation, any short
sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of
the Undersigned’s Securities or with respect to any security that includes, relates to, or derives any significant part
of its value from such Undersigned’s Securities.
In
addition, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the Lock-Up
Period, make any demand for or exercise any right with respect to, the registration of any Shares or any security convertible
into or exercisable or exchangeable for Shares other than as contemplated in the registration statement relating to the Offering.
The
Lock-Up Period shall mean the period commencing on the date of this Lock-Up Agreement and continue for one hundred and eighty
(180) days and include the one hundred and eightieth (180th) day after the date of the final prospectus supplement
used to sell Shares in the Offering pursuant to the Underwriting Agreement.
Notwithstanding
the foregoing, the undersigned may transfer the Undersigned’s Securities (i) to a Permitted Transferee, (ii) as a bona
fide gift or gifts or charitable contributions under Section 170 of the Internal Revenue Code of 1986, as amended, (iii) to
any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (iv) by virtue of
the laws of descent and distribution upon death of the undersigned, or (v) pursuant to a qualified domestic relations order. As
used in this Agreement, the term “Permitted Transferee” shall mean, if the undersigned is a corporation, company,
business trust, association, limited liability company, partnership, limited liability partnership or other entity (collectively,
the “Entities” or, individually, the “Entity”), to any person or Entity which
controls, is directly or indirectly controlled by, or is under common control with the undersigned and, if the undersigned is
a partnership or limited liability company, to its partners, former partners or an affiliated partnership (or members, former
members or an affiliated limited liability company) managed by the same manager or managing partner (or managing member, as the
case may be) or management company, or managed by an entity controlling, controlled by, or under common control with, such manager
or managing partner (or managing member) or management company in accordance with partnership (or membership) interests; provided,
in the case of clauses (i) through (v), that the transferee agrees in writing with the Representative to be bound by the terms
of this Lock-Up Agreement, and provided, further, that in the case of clauses (i) and (iii) through (v), that no filing
by any party in any public report or filing with the SEC shall be required or shall be made voluntarily in connection with such
transfer. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage
or adoption, not more remote than first cousin. Furthermore, the undersigned may voluntarily forfeit Shares to pay any withholding
tax owed by the undersigned on account of the vesting of such shares, which may be reported on a Form 4 as such.
In
addition, the foregoing restrictions shall not apply to (i) the exercise of stock options granted pursuant to the Company’s
equity incentive plans; provided, that such restrictions shall apply to any of the Undersigned’s Securities
issued upon such exercise, or (ii) the establishment of any contract, instruction or plan (a “Plan”)
that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided, that no sales
of the Undersigned’s Securities shall be made pursuant to such a Plan prior to the expiration of the Lock-Up Period, and
such a Plan may only be established if no public announcement of the establishment or existence thereof and no filing with the
SEC or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned, the
Company or any other person, shall be required, and no such announcement or filing is made voluntarily, by the undersigned, the
Company or any other person, prior to the expiration of the Lock-Up Period, other than a filing pursuant to Item 408 of Regulation
S-K or on a Form 4 or Form 5, as applicable.
Notwithstanding
anything to the contrary in this Lock-Up Agreement, for a period commencing on the ninetieth (90th) day after the date hereof
(the “Leak-Out Period”), the Undersigned shall be permitted to sell, dispose or otherwise transfer,
directly or indirectly, on any Trading Day (as defined below) any of the Undersigned’s Securities in an amount representing
no more than 5% of the average trading volume of the Company’s Shares as reported by Bloomberg, LP on such Trading Day;
provided, that, prior to any such sale, disposition or other transfer, directly or indirectly, of the Undersigned Securities,
the closing price of the Shares sold in the Offering shall have closed at or above 150% of the Purchase Price of the Shares sold
in the Offering, for each of the prior three Trading Days (the “Leak-Out Restriction”). Prior to the
sale, disposition or other transfer, directly or indirectly, of the Undersigned Securities pursuant to this paragraph, the Undersigned
agrees that it shall obtain the prior written approval from the Chief Financial Officer of the Company, which such written approval
shall be forwarded to the Representative by the Undersigned. Notwithstanding anything herein to the contrary, during the Leak-Out
Period, the Undersigned may, directly or indirectly, sell or transfer the Undersigned’s Securities to any Affiliate (as
defined under the Exchange Act); provided, that, as a condition to any such sale or transfer an authorized signatory of the Company
and such Affiliate duly execute and deliver a leak-out agreement no less restrictive to the Affiliate than the Leak-Out Restriction
(an “Affiliate Agreement”, and each such transfer a “Permitted Transfer”)
and, subsequent to a Permitted Transfer, sales by the Undersigned and all Affiliates (other than any such sales that constitute
Permitted Transfers) shall be aggregated for all purposes of this Leak-Out Restriction and all Affiliate Agreements. “Trading
Day” means a day on which the principal Trading Market is open for trading. “Trading Market”
means any of the following markets or exchanges on which the Shares is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange
(or any successors to any of the foregoing).
In
addition, notwithstanding anything in this Lock-Up Agreement to the contrary, the undersigned shall be entitled to (i) convert
or exercise the Undersigned’s Securities owned prior to the date of this Lock-Up Agreement and/or (ii) convert the Undersigned’s
Securities constituting preferred stock received in connection with the close of the Offering as contemplated in the Registration
Statement; provided, in each case, that the Shares received upon exercise or conversion thereof, as applicable,
shall be subject to the restrictions contained in this Lock-Up Agreement.
This
Lock-Up Agreement shall not be construed so as to prohibit the holder of the Investor Note and the holder of the Director Note
from purchasing Shares in the Offering in satisfaction of the Company’s obligations thereunder.
In
furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer
of Shares if such transfer would constitute a violation or breach of this Lock-Up Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement
and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof.
All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors,
assigns, heirs or personal representatives of the undersigned.
The
undersigned understands that the undersigned shall be released from all obligations under this Lock-Up Agreement if (i) the
Company or the Representative informs the other that it does not intend to proceed with the Offering, (ii) the Underwriting
Agreement does not become effective 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, or (iii) the Offering
is not completed by December 8, 2024.
The
undersigned understands that the Representative is entering into the Underwriting Agreement and proceeding with the Offering in
reliance upon this Lock-Up Agreement.
This
Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Capitalized terms
used herein, but not defined herein, shall have the meanings ascribed to them in the Underwriting Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made
pursuant to the Underwriting Agreement, the terms of which are subject to negotiation among the parties thereto.
[Signature
page follows]
| |
Very truly
yours, |
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(Entity - Please Print) |
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(Name - Please Print) |
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(Signature) |
[Signature
Page to the Lock-Up Agreement]
EXHIBIT
B
Form
of Press Release
Chromocell Therapeutics Corporation
[Date]
Chromocell Therapeutics Corporation, a
Delaware corporation (the “Company”), announced today that Alliance Global Partners, acting as representative
for the underwriters and the lead book-running manager in the Company’s initial public of offering of [___] of the Company’s
common stock, is [waiving][releasing] a lock-up restriction with respect to [___] of the Company’s common stock held by [certain
officers or directors][an officer or director] of the Company. The [waiver][release] will take effect on [___], and the shares
of common stock may be sold on or after such date.
This press release is not an offer for
sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may
not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities
Act of 1933, as amended.
