Exhibit 1.1
UNDERWRITING AGREEMENT
between
CANCER PREVENTION PHARMACEUTICALS, INC.
and
AEGIS CAPITAL CORP.,
and
MAXIM GROUP LLC
as Representatives of the Several Underwriters
CANCER PREVENTION PHARMACEUTICALS, INC.
UNDERWRITING AGREEMENT
New York, New York
[•], 0000
Xxxxx Capital Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Maxim Group LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several Underwriters named on Schedule
1 attached hereto
Ladies and Gentlemen:
The undersigned,
Cancer Prevention Pharmaceuticals, Inc., a corporation formed under the laws of the State of Delaware (collectively with its
subsidiaries described in the Registration Statement (as hereinafter defined) as being subsidiaries of Cancer Prevention
Pharmaceuticals, Inc., the “Company”), hereby confirms its agreement (this “Agreement”) with Aegis
Capital Corp. (“Aegis”) and Maxim Group LLC (hereinafter referred to as “you” (including its correlatives) or individually
as the “Representative”, or collectively, the “Representatives”) and with the other underwriters
named on Schedule 1 hereto for which the Representatives are acting as representatives (the Representatives and such
other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”)
as follows:
(i) On
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the several Underwriters, an aggregate of [•] shares (“Firm Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common Stock”).
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares set forth opposite their
respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $[•] per share (93% of
the per Firm Share offering price). The Firm Shares are to be offered initially to the public at the offering price set forth on
the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
(i) Delivery
and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on the third (3rd) Business Day following
the effective date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.1 below) (or the
fourth (4th) Business Day following the Effective Date if the Registration Statement is declared effective after 4:01
p.m., Eastern time) or at such earlier time as shall be agreed upon by the Representatives and the Company, at the offices of Zysman,
Aharoni, Xxxxx and Xxxxxxxx & Worcester LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (“Representative Counsel”), or at
such other place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representatives and
the Company. The hour and date of delivery and payment for the Firm Shares is called the “Closing Date.”
(ii) Payment
for the Firm Shares shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the
Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Shares
(or through the facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Shares
shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing at
least two (2) full Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Shares
except upon tender of payment by the Representatives for all of the Firm Shares. The term “Business Day” means any day
other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to
close in New York, New York.
1.2.1. Option
Shares. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Shares, the
Company hereby grants to the Underwriters an option to purchase up to [•] additional shares of Common Stock, representing
fifteen percent (15%) of the Firm Shares sold in the offering, from the Company (the “Over-allotment Option”). Such
[•] additional shares of Common Stock, the net proceeds of which will be deposited with the Company’s account, are hereinafter
referred to as “Option Shares.” The purchase price to be paid per Option Share shall be equal to the price per Firm
Share set forth in Section 1.1.1 hereof. The Firm Shares and the Option Shares are hereinafter referred to together as the “Public Securities.”
The offering and sale of the Public Securities is hereinafter referred to as the “Offering.”
1.2.2. Exercise
of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representatives as to
all (at any time) or any part (from time to time) of the Option Shares within 45 days after the Effective Date. The Underwriters
shall not be under any obligation to purchase any Option Shares prior to the exercise of the Over-allotment Option. The Over-allotment
Option granted hereby may be exercised by the giving of oral notice to the Company from the Representatives, which must be confirmed
in writing by overnight mail or facsimile or other electronic transmission setting forth the number of Option Shares to be purchased
and the date and time for delivery of and payment for the Option Shares (the “Option Closing Date”), which shall not
be later than five (5) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company
and the Representatives, at the offices of Representative Counsel or at such other place (including remotely by facsimile or other
electronic transmission) as shall be agreed upon by the Company and the Representatives. If such delivery and payment for the Option
Shares does not occur on the Closing Date, the Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment
Option with respect to all or any portion of the Option Shares, subject to the terms and conditions set forth herein, (i) the Company
shall become obligated to sell to the Underwriters the number of Option Shares specified in such notice and (ii) each of the Underwriters,
acting severally and not jointly, shall purchase that portion of the total number of Option Shares then being purchased as set
forth in Schedule 1 opposite the name of such Underwriter.
1.2.3. Payment
and Delivery. Payment for the Option 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 through the facilities of DTC) for the account of the Underwriters. The Option Shares shall
be registered in such name or names and in such authorized denominations as the Representatives 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 Representatives for applicable Option Shares.
1.3.1. Purchase
Warrants. As additional compensation for its services hereunder, the Company hereby agrees to issue to the Representatives (and/or
its designees) on the Closing Date a warrant or warrants (“Representative’s Warrant”) for the purchase of an
aggregate of [•] shares of Common Stock, representing 4% of the Firm Shares (excluding the Option Shares), for an aggregate
purchase price of $100.00. The Representative’s Warrant agreement, in the form attached hereto as Exhibit A (the
“Representative’s Warrant Agreement”), shall be exercisable, in whole or in part, commencing on a date which
is one (1) year after the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise
price per shares of Common Stock of $[•], which is equal to 137.5% of the initial public offering price of the Firm Shares.
The Representative’s Warrant Agreement and the shares of Common Stock issuable upon exercise thereof are hereinafter referred
to together as the “Representative’s Securities.” Each Representative understands and agrees that there are significant
restrictions pursuant to FINRA Rule 5110 against transferring the Representative’s Warrant Agreement and the underlying shares
of Common Stock during the one hundred eighty (180) days after the Effective Date and by its acceptance thereof shall agree that
it will not sell, transfer, assign, pledge or hypothecate the Representative’s Warrant Agreement, or any portion thereof,
or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition
of such securities for a period of one hundred eighty (180) days following the Effective Date to anyone other than (i) an Underwriter
or a selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Representative or of any such
Underwriter or selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions.
1.3.2. Delivery.
Delivery of the Representative’s Warrant Agreement shall be made on the Closing Date and shall be issued in the name or names
and in such authorized denominations as the Representatives may request.
2. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined
below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1.1. Pursuant
to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-208718), including any related prospectus
or prospectuses, for the registration of the Public Securities and the Representative’s Securities under the Securities Act
of 1933, as amended (the “Securities Act”), which registration statement and amendment or amendments have been prepared
by the Company in all material respects in conformity with the requirements of the Securities Act and the rules and regulations
of the Commission under the Securities Act (the “Securities Act Regulations”) and will contain all material statements
that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except as the
context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration
statement became effective (including the Preliminary Prospectus included in the registration statement, financial statements,
schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a
part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations (the “Rule
430A Information”)), is referred to herein as the “Registration Statement.” If the Company files any registration
statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration Statement”
shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective
by the Commission on the date hereof.
Each
prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information
that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary
Prospectus.” The Preliminary Prospectus, subject to completion, dated [•], 2016, that was included in the Registration
Statement immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus
in the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.” Any
reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement.
“Applicable
Time” means [TIME] [a.m./p.m.], Eastern time, on the date of this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities
Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in
Rule 405 of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission
by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether
or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i)
because it contains a description of the Public Securities or of the Offering that does not reflect the final terms, in each case
in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona
Fide Electronic Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Pricing
Disclosure Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing
Prospectus and the information included on Schedule 2-A hereto, all considered together.
2.1.2. Pursuant
to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 000-[•]) providing for the registration
pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the shares
of Common Stock. The registration of the shares of Common Stock under the Exchange Act has been declared effective by the Commission
on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating
terminating such registration.
2.2 Stock
Exchange Listing. The shares of Common Stock have been approved for listing on the NYSE MKT LLC (the “Exchange”)(subject
to official notice of issuance), and the Company has taken no action designed to, or likely to have the effect of, delisting the
shares of Common Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating
such listing except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.3 No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including
the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto,
and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of
the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection
with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Neither
the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or
at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits
or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The
Pricing Disclosure Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), did not, does
not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Limited Use Free
Writing Prospectus hereto does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements
omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by
the Representatives expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus or any amendment thereof
or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter consists
solely of the following disclosure contained in the “Underwriting” section of the Prospectus: The second full paragraph
under the heading “Discount”, the four bullet points under the heading “Stabilization”, the second and
third sentences under the heading “Electronic Offer, Sale and Distribution of Shares”, and the paragraph under the
heading “Passive market making” (collectively, the “Underwriters’ Information”); and
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of
any filing with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or
will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to the Underwriters’ Information.
2.4.2. Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other
documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that
have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company
is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly
executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the
Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that
the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in default
thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a default thereunder. 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 (each, a “Governmental Entity”), including, without limitation, those relating to environmental laws
and regulations.
2.4.3. Prior
Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit
of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
2.4.4. Regulations.
The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal,
state, local and all foreign regulation on the Offering and the Company’s business as currently contemplated are correct
in all material respects and no other such regulations are required to be disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus which are not so disclosed.
2.5.1. No
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse
change in the financial position or results of operations of the Company, nor any change or development that, individually or in
the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, business, assets or prospects of the Company (a “Material Adverse Change”);
(ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement;
and (iii) no officer or director of the Company has resigned from any position with the Company.
2.5.2. Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities
or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or
made any other distribution on or in respect to its capital stock.
2.7 Independent
Accountants. To the knowledge of the Company, Xxxxx Xxxxxxx XxXxxx P.C. (the “Auditor”), whose report is filed
with the Commission as part of the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent
registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting
Oversight Board. The Auditor has not, during the periods covered by the financial statements included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section
10A(g) of the Exchange Act.
2.8 Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position and the results of operations
of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity
with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided
that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the
aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement,
if any, present fairly the information required to be stated therein. Except as included therein, no historical or pro forma financial
statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the
Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related
notes, if any, included in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been properly compiled
and prepared in accordance with the applicable requirements of the Securities Act and the Securities Act Regulations and present
fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in
the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including
contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material
current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (i) neither the Company nor any of its direct and indirect subsidiaries,
including each entity disclosed or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus as
being a subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”), has incurred
any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary
course of business, (ii) the Company has not declared or paid any dividends or made any distribution of any kind with respect to
its capital stock, (iii) there has not been any change in the capital stock of the Company or any of its Subsidiaries, or, other
than in the course of business, any grants under any equity compensation plan, (iv) there has not been any material adverse change
in the Company’s long-term or short-term debt, and (v) the Company is not prohibited or restricted, directly or indirectly,
from paying any dividends or making any other distributions on its capital stock.
2.9 Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date
the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the
Pricing Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time and on the Closing Date and any
Option Closing Date, there will be no stock options, warrants, or other rights to purchase or otherwise acquire any authorized,
but unissued shares of Common Stock of the Company or any security convertible or exercisable into shares of Common Stock of the
Company, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible
securities.
2.10.1. Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement
have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission
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 of any holders of any security of the Company or similar contractual rights granted
by the Company. The authorized shares of Common Stock conform in all material respects to all statements relating thereto contained
in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The offers and sales of the outstanding shares
of Common Stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue
sky” laws or, based in part on the representations and warranties of the purchasers of such Shares, exempt from such registration
requirements.
2.10.2. Securities
Sold Pursuant to this Agreement. The Public Securities and Representative’s Securities have been duly authorized for
issuance and sale and, when issued and paid for, will be validly issued, fully paid and non-assessable,
have been issued in compliance with all federal, state and local securities laws, and conform to the description thereof
contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; the holders thereof are not and will
not be subject to personal liability by reason of being such holders; the Public Securities and Representative’s Securities
are not and will not be subject to the preemptive rights or rights of first refusal 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 Representative’s Securities has been duly and validly taken. The Public Securities
and Representative’s Securities conform in all material respects to all statements with respect thereto contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. All corporate action required to be taken for the authorization,
issuance and sale of the Representative’s Warrant Agreement has been duly and validly taken; the shares of 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 Warrant and the Representative’s
Warrant Agreement, such shares of Common Stock 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; and such shares of Common Stock are not and will
not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by
the Company.
2.11 Registration
Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the
Company have the right to require the Company to register any such securities of the Company under the Securities Act or to include
any such securities in a registration statement to be filed by the Company.
2.12 Validity
and Binding Effect of Agreements. This Agreement and the Representative’s Warrant Agreement have been duly and validly
authorized by the Company, and, when executed and delivered, will constitute, the valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that
the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought.
2.13 No
Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Representative’s Warrant
Agreement and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and
the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the
lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute
a material default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party;
(ii) result in any violation of the provisions of the Company’s Certificate of Incorporation (as the same may be amended
or restated from time to time, the “Charter”) or the bylaws of the Company; or (iii) violate any existing applicable
law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof (including, without limitation,
those promulgated by the Food and Drug Administration of the U.S. Department of Health and Human Services (the “FDA”)
or by any foreign, federal, state or local regulatory authority performing functions similar to those performed by the FDA), except
for any such violation that, individually or in the aggregate, would not have or reasonably be expected to result in a Material
Adverse Change.
2.14 No
Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by
which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation
of any term or provision of its Charter or bylaws. The Company is not in violation of any franchise, license, permit, applicable
law, rule, regulation, judgment or decree of any Governmental Entity, except for any such violation that, individually or in the
aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.15.1. Conduct
of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business
purpose as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.15.2. Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions
and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained.
No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid
issuance, sale and delivery of the Public Securities and the consummation of the transactions and agreements contemplated by this
Agreement and the Representative’s Warrant Agreement and as contemplated by the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except with respect to applicable federal and state securities laws and the rules and regulations of
the Exchange and the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.16 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 officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Company’s directors, officers and principal shareholders as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined
in Section 2.26 below), provided to the Underwriters, is true and correct in all material respects and the Company has not become
aware of any information which would cause the information disclosed in the Questionnaires to become materially inaccurate and
incorrect.
2.17 Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental
proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s
knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus or in connection with the Company’s listing application for the listing of the Public Securities
on the Exchange.
2.18 Good
Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws
of the State of Delaware as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to
qualify, individually or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.19 Insurance.
The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks
which the Company believes are adequate, and all such insurance is in full force and effect. The Company has no reason to believe
that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change.
2.20.1. Finder’s
Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims,
payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee
by the Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements
or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may affect the Underwriters’
compensation, as determined by FINRA.
2.20.2. Payments
Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company
persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the Effective Date,
other than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.20.3. Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
2.20.4. FINRA
Affiliation. To the Company’s knowledge, there is no (i) officer or director of the Company, (ii) beneficial owner of
5% or more of any class of the Company’s securities, or (iii) beneficial owner of the Company’s unregistered equity
securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is
an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and
regulations of FINRA).
2.20.5. Information.
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.
2.21 Foreign
Corrupt Practices Act. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries,
has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to
customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate
for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company
(or assist it in connection with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty
in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might have had a Material
Adverse Change, or (iii) if not continued in the future, might have a Material Adverse Change. The Company has taken reasonable
steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects
with the Foreign Corrupt Practices Act of 1977, as amended.
2.22 Compliance
with OFAC. None of the Company and its Subsidiaries or, to the Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company and its Subsidiaries or any other person acting on behalf of the Company and its Subsidiaries, is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
2.23 Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements including those of the Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act), and the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit
or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened.
2.24 Regulatory.
All preclinical and clinical studies conducted by or on behalf of the Company that are material to the Company and its Subsidiaries,
taken as a whole, are or have been adequately described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
in all material respects. The clinical and preclinical studies conducted by or on behalf of the Company and its Subsidiaries
that are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or the results of which are
referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus were and, if still ongoing, are
being conducted in material compliance with all laws and regulations applicable thereto in the jurisdictions in which they are
being conducted and with all laws and regulations applicable to preclinical and clinical studies from which data will be submitted
to support marketing approval, including, but not limited to, the Federal Food, Drug and Cosmetic Act and its applicable implementing
regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 812. The descriptions in the Registration Statement, the Pricing Disclosure
Package and the Prospectus of the results of such studies are accurate and complete in all material respects and fairly present
the data derived from such studies, and the Company has no knowledge of, or reason to believe that, any large well-controlled clinical
study the aggregate results of which are inconsistent with or otherwise call into question the results of any clinical study conducted
by or on behalf of the Company that are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
or the results of which are referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not received
any written notices or statements from the FDA, the European Medicines Agency (“EMA”) or any other governmental agency
or authority imposing, requiring, requesting or suggesting a clinical hold, termination, suspension or material modification for
or of any clinical or preclinical studies that are described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus or the results of which are referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not received
any written notices or statements from the FDA, the EMA or any other governmental agency, and otherwise has no knowledge of, or
reason to believe that, (i) any investigational new drug application for potential product of the Company is or has been rejected
or determined to be non-approvable or conditionally approvable; and (ii) any license, approval, permit or authorization to conduct
any clinical trial of any potential product of the Company has been, will be or may be suspended, revoked, modified or limited.
2.25 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.26 Lock-Up
Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s officers, directors and each
owner of at least 1% of the Company’s outstanding shares of Common Stock (or securities convertible or exercisable into shares
of Common Stock) (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver
to the Representatives an executed Lock-Up Agreement, in the form attached hereto as Exhibit B (the “Lock-Up Agreement”),
prior to the execution of this Agreement.
2.27 Subsidiaries.
All direct and indirect Subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization
or incorporation, and each Subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the
conduct of business requires such qualification, except where the failure to qualify would not have a Material Adverse Change.
The Company’s ownership and control of each Subsidiary is as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus. No Subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying any dividends
to the Company, from making any other distributions 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.
2.28 Related
Party Transactions. There are no business relationships or related party transactions involving the Company or any other person
required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described
as required.
2.29 Board
of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Pricing
Prospectus and the Prospectus captioned “Management and Board of Directors.” The qualifications of the persons serving
as board members and the overall composition of the board comply with the Exchange Act, the Exchange Act Regulations, the Xxxxxxxx-Xxxxx
Act of 2002 and the rules promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”) applicable to the Company and the listing
rules of the Exchange. At least one member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit
committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
2.30.1. Disclosure
Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15
or 15d-15 under the Exchange Act Regulations, and such controls and procedures are effective to ensure that all material information
concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s
Exchange Act filings and other public disclosure documents.
2.30.2. Compliance.
The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Xxxxxxxx-Xxxxx
Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s
future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions
of the Xxxxxxxx-Xxxxx Act.
2.31 Accounting
Controls. The Company and its Subsidiaries maintain systems of “internal control over financial reporting” (as
defined under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply with the requirements of the Exchange Act
and have been designed by, or under the supervision of, their respective principal executive and principal financial officers,
or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses in its internal controls. The
Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are known to
the Company’s management and that have adversely affected or are reasonably likely to adversely affect the Company’
ability to record, process, summarize and report financial information; and (ii) any fraud known to the Company’s management,
whether or not material, that involves management or other employees who have a significant role in the Company’s internal
controls over financial reporting.
2.32 No
Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to
register as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
2.33 No
Labor Disputes. No material labor related litigation, and no material labor dispute with the employees of the Company or any
of its Subsidiaries exists or, to the knowledge of the Company, is imminent.
2.34 Intellectual
Property Rights. The Company and each of its Subsidiaries owns, licenses or possesses or has valid rights to use all
patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets, technology and similar rights (“Intellectual Property Rights”)
necessary for the conduct of the business of the Company and its Subsidiaries as currently carried on and as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use
by the Company or any of its Subsidiaries necessary for the conduct of its business as currently carried on and as described
in the Registration Statement and the Prospectus will involve or give rise to any infringement of, or license or similar fees
for, any Intellectual Property Rights of others (other than Intellectual Property Rights licensed by or to the Company).
Neither the Company nor any of its Subsidiaries has received any notice alleging any such infringement, fee or conflict with
asserted Intellectual Property Rights of others (other than Intellectual Property Rights licensed by or to the Company).
Except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change: (i) to
the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any of the
Intellectual Property Rights owned by the Company or any of its Subsidiaries; (ii) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of the Company or any
of its Subsidiaries in or to any such Intellectual Property
Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim, that would,
individually or in the aggregate, together with any other claims in this Section 2.34, reasonably be expected to result in a
Material Adverse Change; (iii) the Intellectual Property Rights owned by the Company or any of its Subsidiaries and,
to the knowledge of the Company, the Intellectual Property Rights licensed to the Company or any of its Subsidiaries have
not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or
scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis
for any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.34,
reasonably be expected to result in a Material Adverse Change; (iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company or
any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights or other
proprietary rights of others, the Company has not received any written notice of such claim and the Company is unaware of any
other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together
with any other claims in this Section 2.34, reasonably be expected to result in a Material Adverse Change; and (v) to the
Company’s knowledge, no employee of the Company or any of its Subsidiaries is
in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any
restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with the Company, or actions undertaken by the employee while employed with the Company and would reasonably be
expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all
material technical information developed by and belonging to the Company or any of its Subsidiaries which
has not been patented has been kept confidential. The Company or any of its Subsidiaries is
not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other
person or entity that are required to be set forth in the Registration Statement, the Pricing Disclosure Package and the
Prospectus and are not described therein. The Registration Statement, the Pricing Disclosure Package and the Prospectus
contain in all material respects the same description of the matters set forth in the preceding sentence. None of the
technology employed by the Company or any of its Subsidiaries has
been obtained or is being used by the Company in violation of any contractual obligation binding on the Company or any of its
Subsidiaries or, to the Company’s knowledge, any of its
officers, directors or employees, or otherwise in violation of the rights of any persons.
2.35 Taxes.
Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities
prior to the date hereof or has duly obtained extensions of time for the filing thereof and each of the Company and its Subsidiaries
has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed
against the Company or such respective Subsidiary, except for taxes being contested or where the failure to file any such return
or pay such taxes would not have, or reasonably be expected to result in, a Material Adverse Change. The provisions for taxes payable,
if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and
unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements.
Except as disclosed in writing to the Underwriters, (i) no material issues have been raised (and are currently pending) by any
taxing authority in connection with any of the returns or taxes asserted as due from the Company or its Subsidiaries, and (ii)
no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the
Company or its Subsidiaries. The term “taxes” mean all federal, state, local, foreign and other net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments
or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect
thereto. The term “returns” means all returns, declarations, reports, statements and other documents required to be
filed in respect to taxes.
2.36 ERISA
Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects
with ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described
in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained
by the Company or any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company
or any of its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably
expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established
or maintained by the Company or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which would cause
the loss of such qualification.
2.37.1. The
Company: (i) is and at all times has been in compliance with all statutes, rules, or regulations applicable to the ownership, testing,
development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product manufactured or distributed by the Company (“Applicable Laws”), except as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (ii) has not received any
FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the U.S. Food and
Drug Administration or any other governmental authority alleging or asserting noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”); (C) possesses all material Authorizations and such Authorizations are valid and in full force
and effect and are not in material violation of any term of any such Authorizations; (iv) has not received notice of any claim,
action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority or third
party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge
that any such governmental authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding; (E) has not received notice that any governmental authority has taken, is taking or intends to take action to limit,
suspend, modify or revoke any Authorizations and has no knowledge that any such governmental authority is considering such action;
(F) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct on the date
filed (or were corrected or supplemented by a subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated,
conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert,
post-sale warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy
of any product or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated,
conducted or intends to initiate any such notice or action.
2.37.2. The
Company possesses all material permits, licenses, franchises, registrations, exemptions, approvals, authorizations and clearances
and certificates of the FDA necessary to conduct its businesses (collectively the “Permits”), and all such Permits
are in full force and effect, except where the failure to possess such Permits would not and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Change. The Company has fulfilled and performed all of its material
obligations with respect to the Permits, and, to the Company’s knowledge, no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the
holder of any Permit. To the Company’s knowledge, all applications, notifications, submissions, information, claims, reports
and statistics, and other data and conclusions derived therefrom, utilized as the basis for any and all requests for a Permit from
the FDA relating to the Company, its business and the products of the Company, when submitted to the FDA, were true, complete and
correct in all material respects as of the date of submission and any necessary or required updates, changes, corrections or modification
to such applications, submissions, information and data have been submitted to the FDA.
2.37.3. The
Company is not a party to any corporate integrity agreements, monitoring agreements, deferred prosecution agreements, consent decrees,
settlement orders, or similar agreements with or imposed by any Governmental Entity.
2.37.4. Neither
the Company, nor, to the Company’s knowledge, any of its directors, officers, employees and agents, is debarred or excluded,
or has been convicted of any crime or engaged in any conduct that could result in a debarment or exclusion, from any federal or
state government health care program under 21 U.S.C. § 335a or any similar state law, rule or regulation. As of the Effective
Date, no claims, actions, proceedings or investigations that would reasonably be expected to result in such a debarment or exclusion
are pending or, to the Company’s knowledge, threatened against the Company, or the directors, officers, employees or agents
of the Company.
2.38 Ineligible
Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at
the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account
of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible
issuer.
2.39 Smaller
Reporting Company. 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.
2.40 Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable
and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.41 Reverse
Stock Split. The Company has taken all necessary corporate action to effectuate a reverse stock split of its shares of Common
Stock on the basis of one (1) such share for each [•] ([•]) issued and outstanding shares thereof (the “Reverse
Stock Split”), such Reverse Stock Split to be effective no later than the first trading day of the Firm Shares following
the date hereof.
2.42 Emerging
Growth Company. From the time of the initial confidential submission of the Registration Statement to the Commission (or, if
earlier, the first date on which the Company engaged directly in or through any Person authorized to act on its behalf in any Testing-the
Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined
in Section 2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication”
means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
2.43 Testing-the-Waters
Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters
Communications with the written consent of the Representatives and with entities that are “qualified institutional buyers”
within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule
501 under the Securities Act and (ii) authorized anyone other than the Representatives to engage in Testing-the-Waters Communications.
The Company confirms that each Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act.
2.44 Electronic
Road Show. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the
Securities Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities
Act Regulations) is required in connection with the Offering.
2.45 Margin
Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares
of Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve
Board.
2.46 Compliance
with Environmental Laws. (i) The Company is not in violation of any material federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (ii) the Company has all material permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with their requirements, (iii) there are no pending or, to the Company’s
knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company and (iv) to the
Company’s knowledge, there are no events or circumstances that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting
the Company relating to Hazardous Materials or any Environmental Laws.
2.47 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 Pricing Disclosure Package or the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
2.48 Title.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) each of the Company and
its Subsidiaries owns or has valid leasehold interests in all material properties and assets required for the operation of their
business as now conducted or as presently proposed to be conducted, including those described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus as being owned by them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with the use made or to be made thereof by the Company or its
Subsidiaries, and (ii) each of the Company and its Subsidiaries has good and marketable title to all properties and assets owned
by it which are material to its business, in each case free from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made thereof by the Company or its Subsidiaries. All real property
leases to which the Company or any of its Subsidiaries is a party are valid, subsisting and, to the knowledge of the Company, enforceable
by the Company or such Subsidiary, in each case with no exceptions that would materially interfere with the use made or to be made
thereof by the Company or its Subsidiaries and each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession
under all such leases to which it is a party as lessee.
3.1 Amendments
to Registration Statement. The Company shall deliver to the Representatives, prior to filing, any amendment or supplement to
the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement
to which the Representatives shall reasonably object in writing.
3.2.1. Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will
notify the Representatives promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt
of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Public
Securities and Representative’s Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning
the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities
Act in connection with the Offering of the Public Securities and Representative’s Securities. The Company shall effect all
filings required under Rule 424(b) of the Securities Act Regulations, in the manner and within the time period required by Rule
424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company shall use its best efforts to prevent the issuance of any stop order,
prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
3.2.2. Continued
Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange
Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and
in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to
the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”),
would be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of Representative Counsel or for the Company, to
(i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) amend or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or
the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to
a purchaser or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus,
as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company
will promptly (A) give the Representatives notice of such event; (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply
with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies
of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company
shall not file or use any such amendment or supplement to which the Representatives or Representative Counsel shall reasonably object.
The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably
request. The Company has given the Representatives reasonable notice of any filings made pursuant to the Exchange Act or the Exchange
Act Regulations prior to the Applicable Time. The Company shall give the Representatives notice of its intention to make any such
filing from the Applicable Time until the later of the Closing Date and the exercise in full or expiration of the Over-allotment
Option specified in Section 1.2 hereof and will furnish the Representatives with copies of the related document(s) a reasonable
amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives
or Representative Counsel shall reasonably object.
3.2.3. Exchange
Act Registration. For a period of three (3) years after the date of this Agreement, the Company shall use its best efforts
to maintain the registration of the shares of Common Stock under the Exchange Act. The Company shall not deregister the shares
of Common Stock under the Exchange Act without the prior written consent of the Representatives.
3.2.4. Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it shall
not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission
or retained by the Company under Rule 433; provided that the Representatives shall be deemed to have consented to each Issuer General
Use Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of
an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the
Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
| 3.2.5. | [Intentionally omitted.] |
3.3 Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available
to the Representatives and Representative Counsel, without charge, signed copies of the Registration Statement as originally filed
and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and
each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
3.4 Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by
Rule 172, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
3.5 Effectiveness
and Events Requiring Notice to the Representatives. The Company shall use its best efforts to cause the Registration Statement
to remain effective with a current prospectus for the longer of (i) at least nine (9) months after the Applicable Time, or (ii)
so long as the Representative’s Warrant is outstanding (unless the Company elects to register the Representative’s
Warrants on a Form S-3 registration statement), and shall notify the Representatives immediately and confirm the notice in writing:
(a) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission
of any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any
state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or
sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing
and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of
the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any
event during the period described in this Section 3.5 that, in the judgment of the Company, makes any statement of a material fact
made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue or that requires the making of any
changes in (a) the Registration Statement in order to make the statements therein not misleading, or (b) in the Pricing Disclosure
Package or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any
time, the Company shall make every reasonable effort to obtain promptly the lifting of such order.
3.6 Review
of Financial Statements. For a period of five (5) years after the date of this Agreement, the Company, at its expense, shall
cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial
statements for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7 Listing.
The Company shall use its best efforts to maintain the listing of the shares of Common Stock (including the Public Securities)
on the Exchange for at least three years from the date of this Agreement.
3.8 Financial
Public Relations Firm. As of the Effective Date, the Company shall have retained a financial public relations firm reasonably
acceptable to the Representatives and the Company, which shall initially be Xxxxx and Partners LLC, which firm shall be experienced
in assisting issuers in initial public offerings of securities and in their relations with their security holders, and shall retain
such firm or another comparable firm for a period of not less than two (2) years after the Effective Date.
3.9.1. Periodic
Reports, etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish to the Representatives
copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally
to holders of any class of its securities and also promptly furnish to the Representatives: (i) a copy of each periodic report the
Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every
press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii)
a copy of each Form 8-K prepared and filed by the Company; (iv) five copies of each registration statement filed by the Company
under the Securities Act; and (v) such additional documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Representatives may from time to time reasonably request; provided the Representatives
shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to
the Representatives and Representative Counsel in connection with the Representatives’ receipt of such information. Documents
filed with the Commission pursuant to its XXXXX system shall be deemed to have been delivered to the Representatives pursuant to
this Section 3.9.1.
3.9.2. Transfer
Agent; Transfer Sheets. For a period of three (3) years after the date of this Agreement, the Company shall retain a transfer
agent and registrar acceptable to the Representatives (the “Transfer Agent”) and shall furnish to the Representatives
at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representatives may reasonably
request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. [ ] is acceptable to the Representatives
to act as Transfer Agent for the shares of Common Stock.
3.9.3. Trading
Reports. During such time as the Public Securities are listed on the Exchange, the Company shall provide to the Representatives,
at the Company’s expense, such reports published by Exchange relating to price trading of the Public Securities, as the Representatives
shall reasonably request.
3.10.1. General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date,
if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company
under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of the shares of Common Stock to be sold in the Offering (including the Over-allotment Shares) with the Commission; (b) all filing
fees associated with the review of the Offering by FINRA (c) all fees and expenses relating to the listing of such Public Securities
on the Exchange and such other stock exchanges as the Company and the Representatives together determine; (d) all fees, expenses
and disbursements relating to background checks of the Company’s officers and directors in an amount not to exceed $5,000
per individual and $30,000 in the aggregate; (e) all fees, expenses and disbursements relating to the registration or qualification
of the Public Securities under the “blue sky” securities laws of such states and other jurisdictions as the Representatives
may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees and disbursements
of “blue sky” counsel, it being agreed that if the Offering is commenced on the Exchange, the Nasdaq Global Market,
or the Nasdaq Global Select Market, the Company shall make a payment of $5,000 to such counsel at Closing, or if the Offering is
commenced on the Nasdaq Capital Market or Over-the-Counter Bulletin Board, the Company shall make a payment of $15,000 to such
counsel upon the commencement of “blue sky” work by such counsel and an additional $5,000 at Closing); (f) all fees,
expenses and disbursements relating to the registration, qualification or exemption of the Public Securities under the securities
laws of such foreign jurisdictions as the Representatives may reasonably designate; (g) the costs of all mailing and printing of
the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate,
any Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney),
Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses
as the Representatives may reasonably deem necessary; (h) the costs and expenses of a public relations firm; (i) the costs of preparing,
printing and delivering certificates representing the Public Securities; (j) fees and expenses of the transfer agent for the shares
of Common Stock; (k) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the
Underwriters; (l) the costs associated with post-Closing advertising the Offering in the national editions of the Wall Street Journal
and New York Times; (m) the costs associated with bound volumes of the public offering materials as well as commemorative mementos
and lucite tombstones, each of which the Company or its designee shall provide within a reasonable time after the Closing Date
in such quantities as the Representatives may reasonably request (provided, that, such amounts shall not exceed $5,000 without the
Company’s prior written consent); (n) the fees and expenses of the Company’s accountants; (o) the fees and expenses
of the Company’s legal counsel and other agents and representatives; (p) the fees and expenses of the Representative Counsel
not to exceed $75,000; (q) the $29,500 cost associated with the Underwriter’s use of Ipreo’s book-building, prospectus
tracking and compliance software for the Offering; and (r) up to $20,000 of the Underwriter’s actual accountable “road
show” expenses for the Offering. The Representatives may deduct from the net proceeds of the Offering payable to the Company
on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriters.
It is agreed and understood that the accountable expenses reimbursable to the Representatives under this Section 3.10.1 shall
be capped at $140,000. It is further agreed that this $140,000 cap shall cover all the out of pocket expense categories set forth
in this Section 3.10.1.
3.10.2. Non-accountable
Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.10.1, on the Closing Date
it shall pay to the Representatives, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense
allowance equal to one percent (1%) of the gross proceeds received by the Company from the sale of the Firm Shares (excluding the
Option Shares), less the Advance (as such term is defined in Section 8.3 hereof), provided, however, that in the event that the
Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 8.3 hereof.
3.10.3. Credit
for Certain Sales. The Representatives will credit the Company against underwriting discounts and commissions payable hereunder
3.5% of the Firm Share offering price of [•] per share, only with respect to any sales of the Firm Shares to the investors
identified as “Company Introduced Investors” on Schedule 2-A hereof.
3.11 Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the
application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.12 Delivery
of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement, an
earnings statement (which need not be certified by independent registered public accounting firm unless required by the Securities
Act or the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities
Act) covering a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representatives)
has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected
to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Public Securities.
3.14 Internal
Controls. The Company shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
3.15 Accountants.
As of the date of this Agreement, the Company shall retain an independent registered public accounting firm reasonably acceptable
to the Representatives, and the Company shall continue to retain a nationally recognized independent registered public accounting
firm for a period of at least three (3) years after the date of this Agreement. The Representatives acknowledges that the Auditor
is acceptable to the Representative.
3.16 FINRA.
The Company shall advise the Representatives (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i)
any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the Company’s securities
or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired during the 180 days immediately
preceding the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating
in the Offering (as determined in accordance with the rules and regulations of FINRA).
3.17 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in
a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering
and the other transactions contemplated by this Agreement.
3.18 Company
Lock-Up Agreements.
3.18.1. Restriction
on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without the prior written
consent of the Representatives, it will not, for a period of 180 days after the date of this Agreement (the “Lock-Up Period”),
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital
stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company;
(ii) file or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital
stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company
other than a registration statement on Form S-8 to register shares issuable pursuant to the Company’s equity incentive plans;
or (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii) or (iii) above is to be
settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise.
The
restrictions contained in this Section 3.18.1 shall not apply to (i) the shares of Common Stock to be sold hereunder, (ii) the
issuance by the Company of shares of Common Stock upon the exercise of a stock option or warrant or the conversion of a security
outstanding on the date hereof, of which the Representatives have been advised in writing or (iii) the issuance by the Company of
stock options or shares of capital stock of the Company under any equity compensation plan of the Company.
Notwithstanding
the foregoing, if (i) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or
a material event relating to the Company occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning
on the last day of the Lock-Up Period, the restrictions imposed by this Section 3.18.1 shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of such material news or material event,
as applicable, unless the Representatives waive, in writing, such extension.
3.18.2. Restriction
on Continuous Offerings. Notwithstanding the restrictions contained in Section 3.18.1, the Company, on behalf of itself and
any successor entity, agrees that, without the prior written consent of the Representatives, it will not, for a period of 12 months
after the date of this Agreement, directly or indirectly in any “at-the-market” or continuous equity transaction, offer
to sell, sell, contract to sell, grant any option to sell or otherwise dispose of shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for shares of capital stock of the Company.
3.19 Release
of D&O Lock-up Period. If the Representatives, in their sole discretion, agrees to release or waive the restrictions set forth
in the Lock-Up Agreements described in Section 2.26 hereof for an officer, director or stockholder of the Company and provide the
Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release
or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit
C hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
3.20 Blue
Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify
the Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Representatives may designate and to maintain such qualifications in effect so long as required to complete the
distribution of the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.21 Reporting
Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception
afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed
with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations.
Additionally, the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under
Rule 463 under the Securities Act Regulations.
3.22 Emerging
Growth Company Status. The Company shall promptly notify the Representatives if the Company ceases to be an Emerging Growth
Company at any time prior to the later of (i) completion of the distribution of the Public Securities within the meaning of the
Securities Act and (ii) fifteen (15) days following the completion of the Lock-Up Period.
4. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities, as provided
herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof
and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the
following conditions:
4.1 Regulatory
Matters.
4.1.1. Effectiveness
of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than 5:00 p.m.,
Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at each
of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or,
to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the
Commission for additional information. The Prospectus containing the Rule 430A Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment
providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements
of Rule 430A.
4.1.2. FINRA
Clearance. On or before the date of this Agreement, the Representatives shall have received clearance from FINRA as to the amount
of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3. Exchange
Stock Market Clearance. On the Closing Date, the Company’s shares of Common Stock, including the Firm Shares, shall have
been approved for listing on the Exchange, subject only to official notice of issuance. On the first Option Closing Date (if any),
the Company’s shares of Common Stock, including the Option Shares, shall have been approved for listing on the Exchange,
subject only to official notice of issuance.
4.2 Company
Counsel Matters.
4.2.1. Closing
Date Opinion of Counsel. On the Closing Date, the Representatives shall have received the favorable opinion and negative assurance
letter of Gracin & Xxxxxx, LLP, counsel to the Company, dated the Closing Date and addressed to the Representatives, in form
and substance satisfactory to the Representatives.
4.2.2. Opinion
of Special Intellectual Property Counsel and FDA Counsel for the Company. On the Closing Date, the Representatives shall have
received the opinion of ParkerHighlander PLLC, special intellectual property counsel for the Company, and Xxxxxx and Xxxxxxx LLP,
special regulatory counsel for the Company, each dated the Closing Date and addressed to the Representatives, in form and substance
satisfactory to the Representatives.
4.2.3. Option
Closing Date Opinions of Counsel. On the Option Closing Date, if any, the Representatives shall have received the favorable
opinions of each counsel listed in Sections 4.2.1 and 4.2.2, dated the Option Closing Date, addressed to the Representatives and
in form and substance reasonably satisfactory to the Representatives, confirming as of the Option Closing Date, the statements made
by such counsels in their respective opinions delivered on the Closing Date.
4.2.4. Reliance.
In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws
of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified
in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representatives) of
other counsel reasonably acceptable to the Representatives, familiar with the applicable laws; and (ii) as to matters of fact,
to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments
of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided
that copies of any such statements or certificates shall be delivered to Representative Counsel if requested. The opinions of Gracin
& Xxxxxx, LLP, ParkerHighlander PLLC and Xxxxxx and Xxxxxxx LLP and any opinion relied upon by either Gracin & Xxxxxx,
LLP, ParkerHighlander PLLC and Xxxxxx and Xxxxxxx LLP shall include a statement to the effect that it may be relied upon by Representative
Counsel in its opinion delivered to the Underwriters.
4.3 Comfort
Letters.
4.3.1. Cold
Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter containing statements
and information of the type customarily included in accountants’ comfort letters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed
to the Representatives and in form and substance satisfactory in all respects to you and to the Auditor, dated as of the date of
this Agreement.
4.3.2. Bring-down
Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received from
the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms
the statements made in the letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date
not more than three (3) business days prior to the Closing Date or the Option Closing Date, as applicable.
4.4 Officers’
Certificates.
4.4.1. Officers’
Certificate. The Company shall have furnished to the Representatives a certificate, dated the Closing Date and any Option Closing
Date (if such date is other than the Closing Date), of its Executive Chairman of the Board, its Chief Executive Officer, its President
and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Pricing
Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and
each amendment thereto, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other
than the Closing Date) did not include any untrue statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, and the Pricing Disclosure Package, as of the
Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer
Free Writing Prospectus as of its date and as of the Closing Date (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, did
not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the
Pricing Disclosure Package or the Prospectus, (iii) to the best of their knowledge after reasonable investigation, as of the Closing
Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company
in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the
Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included in
the Pricing Disclosure Package, any material adverse change in the financial position or results of operations of the Company,
or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material
adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of
the Company, except as set forth in the Prospectus.
4.4.2. Secretary’s
Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received a certificate
of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Date, as the case may be, respectively,
certifying: (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; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel
and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.5 No
Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have
been no Material Adverse Change from the latest dates as of which such condition is set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending
or, to the knowledge of the Company, threatened against the Company or any Insider before or by any court or federal or state commission,
board or other administrative agency wherein an unfavorable decision, ruling or finding would reasonably be expected to result
in a Material Adverse Change, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated
or threatened by the Commission; and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and
any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance
with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements of the
Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Pricing Disclosure Package nor the
Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading.
4.6 Delivery
of Agreements.
4.6.1. Lock-Up
Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representatives executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.6.2. Representative’s
Warrant Agreement. On the Closing Date, the Company shall have delivered to the Representatives executed copies of the Representative’s
Warrant Agreement.
4.7 Additional
Documents. At the Closing Date and at each Option Closing Date (if any) the Representatives and Representative Counsel shall
have been furnished with such documents and opinions as they may require for the purpose of enabling Representative Counsel to
deliver an opinion to the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance
and sale of the Public Securities and the Representative’s Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and Representative Counsel.
4.8 Reverse
Stock Split. Not later than the first trading day of the Firm Shares following the date hereof, the Reverse Stock Split shall
be effective.
5. Indemnification.
5.1 Indemnification
of the Underwriters.
5.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates and
each of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who
controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively
the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”), against any and all
loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter
Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act,
the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Pricing
Disclosure Package, the Preliminary Prospectus, the Prospectus, in any Issuer Free Writing Prospectus or in any Written Testing-the-Waters
Communication (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show”
or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application or other
document or written communication (in this Section 5, collectively called “application”) executed by the Company or
based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities and Representative’s
Securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, the Exchange
or any other national securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’ Information. With
respect to any untrue statement or omission or alleged untrue statement or omission made in the Pricing Disclosure Package, the
indemnity agreement contained in this Section 5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the
extent that any loss, liability, claim, damage or expense of such Underwriter Indemnified Party results from the fact that a copy
of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written
confirmation of sale of the Public Securities to such person as required by the Securities Act and the Securities Act Regulations,
and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was
a result of non-compliance by the Company with its obligations under Section 3.3 hereof.
5.1.2. Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company
pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of
such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the
reasonable approval of such Underwriter Indemnified Party) and payment of actual expenses. Such Underwriter Indemnified Party shall
have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized
in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to
have charge of the defense of such action within a commercially reasonable time following its receipt of notice by such Underwriter
Indemnified Party of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events
the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Party
(in addition to local counsel) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any
Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve
the terms of any settlement of such action, which approval shall not be unreasonably withheld.
5.2 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure
Package or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict conformity
with, the Underwriters’ Information. In case any action shall be brought against the Company or any other person so indemnified
based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment
or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter
shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights
and duties given to the several Underwriters by the provisions of Section 5.1.2. The Company agrees promptly to notify the Representatives
of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection
with the issuance and sale of the Public Securities or in connection with the Registration Statement, the Pricing Disclosure Package,
the Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3 Contribution.
5.3.1. Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, from the Offering of the Public Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect
to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, with respect to such Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering
of the Public Securities purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the
table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Common Stock purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1,
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with
respect to the Offering of the Public Securities exceeds the amount of any damages that such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
5.3.2. Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another
party (“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify
the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party
or its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be
liable to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party
seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
without the written consent of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended
to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available. Each Underwriter’s obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. Default
by an Underwriter.
6.1 Default
Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters shall default in its or their obligations
to purchase the Firm Shares or the Option Shares, if the Over-allotment Option is exercised hereunder, and if the number of the
Firm Shares or Option Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm
Shares or Option Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares or Option Shares to which
the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default
Exceeding 10% of Firm Shares or Option Shares. In the event that the default addressed in Section 6.1 relates to more than
10% of the Firm Shares or Option Shares, you may in your discretion arrange for yourself or for another party or parties to purchase
such Firm Shares or Option Shares to which such default relates on the terms contained herein. If, within one (1) Business Day
after such default relating to more than 10% of the Firm Shares or Option Shares, you do not arrange for the purchase of such Firm
Shares or Option Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to procure
another party or parties satisfactory to you to purchase said Firm Shares or Option Shares on such terms. In the event that neither
you nor the Company arrange for the purchase of the Firm Shares or Option Shares to which a default relates as provided in this
Section 6, this Agreement will automatically be terminated by you or the Company without liability on the part of the Company (except
as provided in Sections 3.9 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided, however,
that if such default occurs with respect to the Option Shares, this Agreement will not terminate as to the Firm Shares; and provided,
further, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to
the Company for damages occasioned by its default hereunder.
6.3 Postponement
of Closing Date. In the event that the Firm Shares or Option Shares to which the default relates are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the
right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business
Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package
or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration
Statement, the Pricing Disclosure Package or the Prospectus that in the opinion of counsel for the Underwriter may thereby be made
necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section
6 with like effect as if it had originally been a party to this Agreement with respect to such shares of Common Stock.
7. Additional
Covenants.
7.1 Board
Composition and Board Designations. The Company shall ensure that: (i) the qualifications of the persons serving as members
of the Board of Directors and the overall composition of the Board comply with the Xxxxxxxx-Xxxxx Act, with the Exchange Act and
with the listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company
seeks to have its Public Securities listed on another exchange or quoted on an automated quotation system, and (ii) if applicable,
at least one member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,”
as such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2 Prohibition
on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without
the Representatives’ prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st)
Business Day following the forty-fifth (45th) day after the Closing Date, other than normal and customary releases issued
in the ordinary course of the Company’s business; provided, however, that nothing in this Section 7.2 shall prevent the Company
from timely filing any current or periodic reports or making any other filings with the Commission.
7.3 Right
of First Refusal. Provided that the Firm Shares are sold in accordance with the terms of this Agreement, Aegis shall have
an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after
the date of effectiveness of the Registration Statement, to act as lead investment banker, lead book-runner, and/or lead
placement agent, at Aegis’ sole discretion, for each and every future public and private equity and debt
offering, including all equity linked financings (each, a “Subject Transaction”), during such twelve (12) month
period, of the Company, or any successor to or subsidiary of the Company, on terms and conditions customary to Aegis for such
Subject Transactions; provided, however that Maxim Group LLC shall have a right of first refusal to act as joint book-runner and/or
co-lead placement agent with Aegis for all Subject Transactions during such term. For the avoidance of any doubt, the Company shall not retain, engage or solicit any additional
investment banker, book-runner, and/or placement agent in a Subject Transaction without the express written consent of Aegis. The
Company shall notify Aegis of its intention to pursue a Subject Transaction, including the material terms
thereof, by providing written notice thereof by registered mail or overnight courier service addressed to
Aegis. If Aegis fails to exercise its Right of First Refusal with respect to any Subject
Transaction within ten (10) Business Days after the mailing of such written notice, then Aegis shall have no
further claim or right with respect to the Subject Transaction. Aegis may elect, in its sole and absolute
discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such
election by Aegis shall not adversely affect Aegis’ Right of First Refusal with respect to
any other Subject Transaction during the twelve (12) month period agreed to above. The terms and conditions of any
such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion
of due diligence by Aegis, market conditions, the absence of a material adverse change to the Company’s
business, financial condition and prospects, approval of Aegis’ internal committee and any other
conditions that Aegis may deem appropriate for transactions of such nature.
8. Effective
Date of this Agreement and Termination Thereof.
8.1 Effective
Date. This Agreement shall become effective when both the Company and the Representative have executed the same and delivered
counterparts of such signatures to the other party.
8.2 Termination.
The Representatives shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic
or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq
Stock Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government
authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major
hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority; or (v) if a
moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets;
or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage
or other calamity or malicious act which, whether or not such loss shall have been insured, will, in your opinion, make it inadvisable
to proceed with the delivery of the Firm Shares or Option Shares; or (vii) if the Company is in material breach of any of
its representations, warranties or covenants hereunder; or (viii) if the Representatives shall have become aware after the
date hereof of such a material adverse change in the conditions or prospects of the Company, or such adverse material change in
general market conditions as in the Representatives’ judgment would make it impracticable to proceed with the offering, sale
and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3 Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant to Section
6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein
or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual
and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable (including the fees
and disbursements of Representative Counsel) up to $125,000, inclusive of the $25,000 advance for accountable expenses previously
paid by the Company to the Representatives (the “Advance”) and upon demand the Company shall pay the full amount thereof
to the Representatives on behalf of the Underwriters; provided, however, that such expense cap in no way limits or impairs the indemnification
and contribution provisions of this Agreement. Notwithstanding the foregoing, any advance received by the Representatives will be
reimbursed to the Company to the extent not actually incurred in compliance with FINRA Rule 5110(f)(2)(C).
8.4 Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement,
and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force and effect and
shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part
hereof.
8.5 Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9. Miscellaneous.
9.1 Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered
or certified mail, return receipt requested), personally delivered or sent by facsimile transmission and confirmed and shall be
deemed given when so delivered or faxed and confirmed or if mailed, two (2) days after such mailing.
If to the Representatives:
Aegis Capital Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx, Head of Investment Banking
Fax No.: (000) 000-0000
Maxim Group LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxxx Xxxxxx, Head of Investment Banking
Fax No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Zysman, Aharoni, Xxxxx and Xxxxxxxx & Worcester LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Oded Har-Even, Esq.
Fax No.: (000) 000-0000
If to the Company:
Cancer Prevention Pharmaceuticals, Inc.
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Gracin & Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
9.2 Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
9.3 Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4 Entire
Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with
this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
Notwithstanding anything to the contrary set forth herein, it is understood and agreed by the parties hereto that all other terms
and conditions of that certain engagement letter between the Company and Aegis Capital Corp., dated July 13, 2015, shall remain
in full force and effect, provided that in the event of any conflict between this Agreement and the engagement letter, this Agreement
shall control.
9.5 Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representatives, the Underwriters,
the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors,
legal representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors
and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6 Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced
in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to
such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon
the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal
and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating
to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
9.7 Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission
shall constitute valid and sufficient delivery thereof.
9.8 Waiver,
etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance
or non-fulfillment.
[Signature Page Follows]
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule 1 hereto: |
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AEGIS CAPITAL CORP. |
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MAXIM GROUP LLC |
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[Signature
Page]
Cancer
Prevention Pharmaceuticals, Inc. – Underwriting Agreement
SCHEDULE 1
Underwriter | |
Total Number of Firm Shares to be Purchased | | |
Number of Additional Shares to be Purchased if the Over-Allotment Option is Fully Exercised | |
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Aegis Capital Corp. | |
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Maxim Group LLC | |
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TOTAL | |
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SCHEDULE 2-A
Pricing Information
Number of Firm Shares: [•]
Number of Option Shares: [•]
Number of Firm Shares to Company Introduced Investors: [•]
Public Offering Price per Share: $[•]
Underwriting Discount per Share: $[•]
Underwriting Non-accountable expense allowance per Share: $[•]
Credit per Share for Company Introduced Investors: $[•]
Proceeds to Company per Share (before expenses): $[•]
Company Introduced Investors: Sucampo AG
SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
SCHEDULE 2-C
Written Testing-the-Waters Communications
SCHEDULE 3
List of Lock-Up Parties
Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, Ph.D.
Xxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxx Xxxx
Xxxxx X. Xxxxxxxx, Xx. M.D., C.A.C.P.
Meyskens Pharmaceuticals Investors, LLC
Xxxxxx Pharmaceuticals Investors, LLC
Xxxxxxx Family Trust
Translational Accelerator, LLC
Xxxxxx Xxxxxx
Xxxxxxxxxxx X. Xxxxxxx 678 Trust
Xxxxxxx Xxxxxx
Westport Boys, LLC
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
TVP Management Company, LLC
Sucampo A.G.
[Add other holders]
EXHIBIT A
Form of Representative’s Warrant
Agreement
EXHIBIT B
Form of Lock-Up Agreement
[•], 0000
Xxxxx Capital Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands
that Aegis Capital Corp. (the “Representative”) proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with Cancer Prevention Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for
the public offering (the “Public Offering”) of shares of common stock, par value $0.001 per share, of the Company (the
“Shares”).
To induce the Representative
to continue its efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent
of the Representative, the undersigned will not, during the period commencing on the date hereof and ending 180 days after the
date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”),
(1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares
or any securities convertible into or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the undersigned
or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”);
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery
of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of
any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into
any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities. Notwithstanding the foregoing, and subject
to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representative
in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of
the Public Offering; provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with subsequent sales of
Lock-Up Securities acquired in such open market transactions; (b) transfers of Lock-Up Securities as a bona fide gift, by
will or intestacy or to a family member or trust for the benefit of a family member (for purposes of this lock-up agreement, “family
member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up
Securities to a charity or educational institution; or (d) if the undersigned, directly or indirectly, controls a corporation,
partnership, limited liability company or other business entity, any transfers of Lock-Up Securities to any shareholder, partner
or member of, or owner of similar equity interests in, the undersigned, as the case may be; provided that in the case of
any transfer pursuant to the foregoing clauses (b), (c) or (d), (i) any such transfer shall not involve a disposition for
value, (ii) each transferee shall sign and deliver to the Representative a lock-up agreement substantially in the form of this
lock-up agreement and (iii) no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and
registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
If (i) during the last
17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company
occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results or becomes
aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period,
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning
on the issuance of the earnings release or the occurrence of such material news or material event, as applicable, unless the Representative
waives, in writing, such extension.
The undersigned agrees
that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during
the period from the date hereof to and including the 34th day following the expiration of the initial Lock-Up Period,
the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless
it has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the previous
paragraph) has expired.
If the undersigned
is an officer or director of the Company, (i) the undersigned agrees that the foregoing restrictions shall be equally applicable
to any issuer-directed or “friends and family” Shares that the undersigned may purchase in the Public Offering; (ii)
the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of Lock-Up Securities, the Representative will notify the Company of the impending release
or waiver; and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press
release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release
or waiver granted by the Representative hereunder to any such officer or director shall only be effective two (2) business days
after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver
is effected solely to permit a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing
to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in
effect at the time of such transfer.
No provision in this
agreement shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities exercisable
or exchangeable for or convertible into Shares, as applicable; provided that the undersigned does not transfer the Shares
acquired on such exercise, exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms of
this lock-up agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification
of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner
as to cause the sale of any Lock-Up Securities within the Lock-Up Period).
The undersigned understands
that the Company and the Representative are relying upon this lock-up agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
The undersigned understands
that, if the Underwriting Agreement is not executed by April 30, 2016, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold
thereunder, then this lock-up agreement shall be void and of no further force or effect.
Whether or not the
Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representative.
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Very truly yours, |
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(Name - Please Print) |
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(Signature) |
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(Name of Signatory, in the case of entities - Please Print) |
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(Title of Signatory, in the case of entities - Please Print) |
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Address: |
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EXHIBIT C
Form of Press Release
CANCER PREVENTION PHARMACEUTICALS, INC.
[Date]
Cancer Prevention Pharmaceuticals, Inc.
(the “Company”) announced today that Aegis Capital Corp., acting as representative for the underwriters in the Company’s
recent public offering of _______ shares of the Company’s common stock, is [waiving] [releasing] a lock-up restriction
with respect to _________ shares of the Company’s common stock held by [certain officers or directors] [an officer
or director] of the Company. The [waiver] [release] will take effect on _________, 20___, and the shares may be sold
on or after such date.
This press release is not an offer or
sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities
may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act
of 1933, as amended.