Exhibit 1.1
XXXX HEALTH MD, INC.
(a Maryland corporation)
1,350,000 Shares of Common Stock
UNDERWRITING AGREEMENT
[--], 0000
XXXXXXXX CAPITAL, INC.
As Representative of the
several Underwriters listed
in Schedule A hereto
c/o WestPark Capital, Inc.
1900 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
Xxxx Health MD, Inc., a Maryland
corporation (the “Company”), confirms its agreement with Westpark Capital, Inc. (“Westpark”) and
each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Westpark is acting as
representative (in such capacity, the “Representative”), with respect to (i) the sale by the Company and the purchase
by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par value $0.01 per share,
of the Company (“Common Stock”) set forth in Schedule A hereto and (ii) the grant by the Company
to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part
of 202,500 additional shares of Common Stock. The aforesaid shares of Common Stock (the “Initial Securities”) to be
purchased by the Underwriters and all or any part of the 202,500 shares of Common Stock subject to the option described in Section 2(b)
hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that
the Underwriters propose to make a public offering of the Securities as soon as the Representative deem advisable after this Agreement
has been executed and delivered.
The Company has filed with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-268022),
including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities
Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations
of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”)
of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b)
is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits
thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration
Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule
462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule
462(b) Registration Statement. 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 final prospectus, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, is herein called the “Prospectus.” For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system or any successor system (“XXXXX”).
As used in this Agreement:
“Applicable
Time” means [--] P.M., New York City time, on [--], 202__ or such other time as agreed by the Company and the Representative.
“General
Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most
recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule
B-1 hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the
1933 Act Regulations (“Rule 405”)) relating to the 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 Securities or of the offering that does not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule
433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433), as evidenced by
its being specified in Schedule B-2 hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the
1933 Act.
“Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the 1933 Act.
SECTION 1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time,
the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration
Statement and Prospectuses. Each of the Registration Statement and any amendment thereto has become effective under the 1933 Act.
No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under
the 1933 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. The Company has complied
with each request (if any) from the Commission for additional information.
Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, the Applicable Time, the Closing Time and any Date
of Delivery complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and,
in each case, at the Applicable Time, the Closing Time and any Date of Delivery complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 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) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at any Date
of Delivery, 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. At the Applicable Time and any Date of
Delivery, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered
together with the General Disclosure Package nor (C) any individual Written Testing-the-Waters Communication, when considered together
with the General Disclosure Package, 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. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing
with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, 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.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representative expressly for use therein. For purposes of
this Agreement, the only information so furnished shall be the information in the sections entitled “Stabilization, Short Positions
and Penalty Bids” and the information in the section entitled “Electronic Distribution” under the heading “Underwriting”
contained in the Prospectus (collectively, the “Underwriter Information”).
(iii) Testing-the-Waters
Materials. The Company has not engaged in any Testing-the-Waters Communication, other than Testing-the-Waters Communications with
entities that the Company reasonably believes to be qualified institutional buyers within the meaning of Rule 144A under the 1933 Act
or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act. The Company reconfirms that the Representative
has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written
Testing-the-Waters Communications, other than those listed on Schedule B-3 hereto.
(iv) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or omissions from any Issuer Free Writing Prospectus
made in reliance upon and in conformity with the Underwriter Information.
(v) Company
Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective 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 1933 Act Regulations) of the 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.
(vi) Independent
Accountants. To the knowledge of the Company, M&K CPAs, PLLC, the accountants who certified the financial statements and supporting
schedules included in the Registration Statement, the General Disclosure Package and the Prospectus, are independent public accountants
as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board.
(vii) Financial
Statements; Pro Forma Financial Measures; Non-GAAP Financial Measures. The financial statements included in the Registration Statement,
the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects,
the financial position and results of operations of the Company and its consolidated subsidiaries at the dates and for the periods to
which they apply; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”)
applied on a consistent basis 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). The supporting
schedules, if any, present fairly, in all material respects, in accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package
and the Prospectus present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included therein. Except as included therein, no other historical or pro forma financial
statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement,
the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G of the Securities Exchange Act of 1934, as amended (the “1934
Act”), and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable.
(viii) No
Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”),
(B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course
of business or as contemplated by this Agreement, which are material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(ix) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the
laws of the State of Maryland and has corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement and the Underwriter Warrants (as defined below); and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result
in a Material Adverse Effect.
(x) Good
Standing of Subsidiaries. Each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of Regulation
S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power
and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital
stock of any Subsidiary were issued in violation of any preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement and (B) certain other subsidiaries
which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule
1-02 of Regulation S-X.
(xi) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred
to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares
of capital stock of the Company were issued in violation of any preemptive or other similar rights of any securityholder of the Company
that have not been complied with or validly waived.
(xii) Authorization
of Agreement. This Agreement and the Underwriter Warrants have been duly authorized, executed and delivered by the Company.
(xiii) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of
the Securities is not subject to any preemptive or other similar rights of any securityholder of the Company. The shares of Common Stock
issuable upon the exercise of the Underwriter Warrants (the “Underwriter Warrant Shares”), when issued, paid for and
delivered upon due exercise of the Underwriter Warrants, as applicable, will be duly authorized and validly issued, fully paid and nonassessable,
will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. The
Underwriter Warrant Shares have been reserved for issuance. The Underwriter Warrants, when issued, will conform in all material respects
to the descriptions thereof set forth in the Registration Statement, the General Disclosure Package and the Final Prospectus. The Common
Stock conforms, in all material respects, to all statements relating thereto contained in the Registration Statement, the General Disclosure
Package and the Prospectus and such description conforms, in all material respects, to the rights set forth in the instruments defining
the same. No holder of Securities will be subject to personal liability solely by reason of being such a holder.
(xiv) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement,
other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and
have been waived.
(xv) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter, by-laws
or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties
or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such
defaults that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or (C) in violation
of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body,
administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would
not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance
of this Agreement and the Underwriter Warrants and the consummation of the transactions contemplated herein and therein and in the Registration
Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with
its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and, except as disclosed in the
Registration Statement, the General Disclosure Package or the Prospectus, do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result
in any violation of (x) the provisions of the charter, by-laws or similar organizational document of the Company or any of its subsidiaries
or (y) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity, except, in the case of clause
(y), for such violations as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used
herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xvi) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any
subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would reasonably be expected
to result in a Material Adverse Effect.
(xvii) Absence
of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending
or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would reasonably
be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect their respective
properties or assets or the consummation of the transactions contemplated in this Agreement or the Underwriter Warrants or the performance
by the Company of its obligations hereunder and thereunder; and the aggregate of all pending legal or governmental proceedings to which
the Company or any such subsidiary is a party or of which any of their respective properties or assets is the subject which are not described
in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to
the business, would not reasonably be expected to result in a Material Adverse Effect.
(xviii) [Intentionally
left blank.]
(xix) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq, state
securities laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xx) Possession
of Licenses and Permits. The Company and its subsidiaries possess or qualify for an exemption from any applicable requirement to
obtain, such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”)
issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, except where the failure so to
possess would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company and its subsidiaries
are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xxi) Title
to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and good title to
all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus
or (B) do not, singly or in the aggregate, materially affect the value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect,
and neither the Company nor any such subsidiary is aware of any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
(xxii) Intellectual
Property. Except as would not, singly or in the aggregate, result in a Material Adverse Effect, the Company and its subsidiaries
own, otherwise have, or can acquire on reasonable terms, valid, enforceable and adequate rights to use all patents, patent rights, licenses,
inventions, copyrights, software, technology, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service marks, trade names, trade dress, domain names, social media
identifiers and accounts, and other intellectual property and proprietary rights of any kind or nature in any and all applicable jurisdictions
throughout the world (including all goodwill associated with, and all registrations of and applications for registration of, the foregoing)
(collectively, “Intellectual Property”) used or held for use in, or otherwise necessary for or material to the conduct
of their respective businesses as currently conducted and as proposed to be conducted as described in the Registration Statement, the
General Disclosure Package and the Prospectus. Except as would not, singly or in the aggregate, result in a Material Adverse Effect,
the Intellectual Property owned by the Company and its subsidiaries and, to the knowledge of the Company, the Intellectual Property licensed
to the Company and its subsidiaries have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or
in part. Except as would not, singly or in the aggregate, result in a Material Adverse Effect, to the knowledge of the Company, neither
the Company nor any of its subsidiaries, nor the conduct of their respective businesses, infringes, misappropriates or otherwise violates,
or has infringed, misappropriated or violated, any Intellectual Property of others. Except as would not, singly or in the aggregate,
result in a Material Adverse Effect, there is no pending or, to the Company’s knowledge, written threat of action, suit, proceeding
or claim (A) challenging the Company’s or any subsidiary of the Company’s rights in or to any Intellectual Property owned
by or licensed to the Company or any of its subsidiaries, (B) alleging that the Company or any of its subsidiaries has infringed, misappropriated
or otherwise violated or conflicted with any Intellectual Property of any third party, or (C) challenging the ownership, validity, scope
or enforceability of any Intellectual Property owned by or exclusively licensed to the Company or any of its subsidiaries, and neither
the Company nor any of its subsidiaries has received any written notice of, or is otherwise aware of any facts that would form the basis
for, any such action, suit, proceeding or claim. Except as would not, singly or in the aggregate, result in a Material Adverse Effect,
all Intellectual Property owned by the Company or its subsidiaries is owned solely by the Company or its subsidiaries, is owned free
and clear of all liens and encumbrances, and to the knowledge of the Company, no third party is infringing, misappropriating or otherwise
violating, or has infringed, misappropriated or otherwise violated, any Intellectual Property owned by or exclusively licensed to the
Company or any of its subsidiaries. To the Company’s knowledge, no employee of the Company is in or has ever been in violation
in any material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, nonsolicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer. The Company and
its subsidiaries take, and have taken, commercially reasonable steps in accordance with customary industry practice to maintain the confidentiality
of all Intellectual Property, the value of which to the Company or any of its subsidiaries is contingent upon maintaining the confidentiality
thereof. To the Company’s knowledge, all material technical information developed by and belonging to the Company which has not
been patented has been kept confidential.
(xxiii) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or
in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign laws, rules, regulations, decisions or orders relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”), (B) the Company and its subsidiaries have received and are in compliance with all permits, authorizations and approvals
required under applicable Environmental Laws to conduct its business as described in the Registration Statement, the General Disclosure
Package and the Prospectus; and (C) neither the Company nor any of its subsidiaries has received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants.
(xxiv) Accounting
Controls. The Company maintains effective internal control over financial reporting (as defined under Rules 13-a15 and 15d-15
under the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”)) and a system of
internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure
Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely
affect, the Company’s internal control over financial reporting.
(xxv) Compliance
with the Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration
Statement, it will be in compliance in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and
regulations promulgated thereunder or implementing the provisions thereof (the “Xxxxxxxx-Xxxxx Act”) that are then
in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement.
(xxvi) Payment
of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against
which appeals have been or will be promptly taken and as to which adequate reserves have been provided and except insofar as the failure
to pay such taxes would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect. The Company
and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state,
local or other law except insofar as the failure to file such returns would not reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the
Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have
been established by the Company and except insofar as the failure to pay such taxes would not reasonably be expected to, individually
or in the aggregate, result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of
any income tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income
tax for any years not finally determined, except to the extent of any inadequacy that would not reasonably be expected to, individually
or in the aggregate, result in a Material Adverse Effect.
(xxvii) Insurance.
The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the business in which the Company and its subsidiaries are engaged. Neither the Company
or its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverages when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business and at a cost that would not reasonably
be expected to result in a Material Adverse Effect.
(xxviii) Investment
Company Act. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not
be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxix) Absence
of Manipulation. None of the Company or any controlled affiliate of the Company, or to the knowledge of the Company, any non-controlled
affiliate of the Company has taken, nor will the Company or any controlled affiliate of the Company, or to the knowledge of the Company,
any non-controlled affiliate take, directly or indirectly, any action which is designed, or would reasonably be expected, to cause or
result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xxx) Foreign
Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as
such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance
with the FCPA.
(xxxi) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable 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 or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxii) OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or
representative of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the subject
or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department
of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”),
the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not
directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds
to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country
or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by
any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxxiii) Lending
Relationship. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter
and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate
of any Underwriter.
(xxxiv) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package
or the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate in all material
respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxv) Emerging
Growth Company Status. 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 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 1933 Act (an “Emerging Growth Company”).
(xxxvi) IT
Systems and Data. Except as would not, singly or in the aggregate, result in a Material Adverse Effect, (i) the Company and its subsidiaries
own or have a valid right to access and use all information technology assets and computers, systems, networks, hardware, software, websites,
applications, data and databases (including the Protected Data (as defined below) and other data and information of their respective
users, customers, employees, suppliers, vendors and any third party data maintained, stored or otherwise processed by the Company and
its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment and
technology used in their respective businesses (collectively, “IT Systems and Data”); (ii) the IT Systems and Data (A) are
adequate for, and operate and perform as required in connection with, the operation of the business of the Company and its subsidiaries
as currently conducted and as proposed to be conducted in the Registration Statement, the General Disclosure Package and the Prospectus,
(B) have not malfunctioned or failed in a manner that has not been materially remediated prior to the date hereof, and (C) to the knowledge
of the Company, are free and clear of all bugs, errors, defects, Trojan horses, time bombs, back doors, drop dead devices, malware and
other corruptants, including software or hardware components that are designed to interrupt use of, permit unauthorized access to or
disable, damage or erase the IT Systems and Data. To the Company’s knowledge, neither the Company nor its subsidiaries have been
notified of, and each of them have no knowledge of any event or condition that would be reasonably expected to result in, any security
breach or incident, unauthorized access or disclosure or other compromise to the IT Systems and Data. The Company and its subsidiaries
have established, implemented and maintained controls, policies, procedures, and technological safeguards designed to maintain and protect
their confidential information and the integrity, continuous operation, redundancy and security of the IT Systems and Data according
to commercially reasonable standards and practices and in compliance with all applicable laws and regulatory standards.
(xxxvii) Data
Protection Compliance. The Company and its subsidiaries are presently in compliance in all material respects with, and at all prior
times during the past three years, have been in compliance in all material respects with, all of their internal and external privacy
policies and notices, contractual obligations binding upon any of them, and applicable laws, statutes, judgments, orders, rules and regulations
of any court or arbitrator or other governmental or regulatory authority, and all other legal obligations applicable to the Company or
any of its subsidiaries, in each case, relating to the collection, use, transfer, import, export, storage, protection, disposal, disclosure
or other processing by or on behalf of the Company or any of its subsidiaries of personal, personally identifiable, confidential or regulated
data or information (collectively, “Data Protection Obligations,” and such data or information, “Protected
Data”). Neither the Company nor any of its subsidiaries have received any written notification of or complaint regarding or
are otherwise aware of any facts that, individually or in the aggregate, would reasonably indicate non-compliance by the Company or any
of its subsidiaries with any Data Protection Obligation. There is no action, suit, investigation or proceeding against the Company or
any of its subsidiaries by or before any court or governmental agency, authority or body pending or, to the knowledge of the Company,
threatened in writing, against the Company or any of its subsidiaries, alleging non-compliance with any Data Protection Obligations by
the Company or any of its subsidiaries.
(xxxviii) Open
Source. The Company and its subsidiaries use and have used any and all software and other materials distributed under a “free,”
“open source,” or similar licensing model (including, but not limited to, the MIT License, Apache License, GNU General Public
License, GNU Lesser General Public License and GNU Affero General Public License) (collectively, “Open Source Software”)
in compliance in all material respects with all license terms applicable to such Open Source Software and neither the Company nor any
of its subsidiaries have used or distributed any Open Source Software in a manner that requires or has required (i) the Company or any
of its subsidiaries to permit reverse engineering of any products or services of the Company or any of its subsidiaries, or any software
code or other technology owned by the Company or any of its subsidiaries, or (ii) any products or services of the Company or any of its
subsidiaries, or any software code or other technology owned by the Company or any of its subsidiaries, to be (A) disclosed or distributed
in source code form, (B) licensed for the purpose of making derivative works, or (C) redistributed at no charge.
(xil) Ratings.
Neither the Company nor its subsidiaries have any debt securities or preferred stock that are rated by any “nationally recognized
statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representative or
to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing.
(a) Initial
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees
to purchase from the Company, at the price per share set forth in Schedule A, that number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters
as the Representative in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) Option
Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional
202,500 shares of Common Stock, at the price per share set forth in Schedule A, less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby
granted may be exercised for 45 days after the date hereof and may be exercised in whole or in part at any time from time to time
upon notice by the Representative to the Company setting forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery
(a “Date of Delivery”) shall be determined by the Representative, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion
of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number
of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the
name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as the Representative
in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates or security entitlements for, the Initial Securities shall be made at
the offices of Manatt, Xxxxxx & Xxxxxxxx, LLP, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, XX 00000, or at such other
place as shall be agreed upon by the Representative and the Company, at 9:00 A.M. (New York City time) on the second (third, if
the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon
by the Representative and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates
or security entitlements for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representative and the Company, on each Date of Delivery as specified in the notice from the Representative to the
Company.
Payment shall be made to
the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Representative
for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. Westpark,
individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for
the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Underwriter
Warrants. At the Closing Time, the Company shall issue to the Representative or its designee warrants (the “Underwriter
Warrants”), substantially in the form attached hereto as Exhibit C, to purchase that number of shares of Common
Stock of the Company, equal to 7.5% of the aggregate number of Initial Securities or Option Securities issued and sold at such time,
as applicable. The Underwriter Warrants shall be exercisable, in whole or in part, for five (5) years from the effective date of the
offering at an initial exercise price per share of Common Stock of $[●], which is equal to 130% of the public offering price of
the Securities.
SECTION 3. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of Rule
430A, and will notify the Representative promptly, and confirm the notice in writing (which may be by email), (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 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 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of
a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings
required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and
will 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 will
make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to
obtain the lifting thereof as soon as practicable.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion
of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package
and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of
the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General 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 General Disclosure Package or the Prospectus, as
the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A)
give the Representative notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a
reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement
and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment
or supplement to which the Representative or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representative
notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company
will give the Representative notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish
the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and
will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters, if
requested, 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 Representative, 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.
(d) Delivery
of Prospectuses. The Company has delivered 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 1933 Act.
The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or,
but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 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.
(e) Blue
Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative
may designate and to maintain such qualifications in effect so long as required to complete the distribution of the 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.
(f) Rule
158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the
Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing.
The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Securities) on
the Nasdaq Capital Market.
(i) Restriction
on Sale of Securities. During a period of one (1) year from the date of the Prospectus, the Company will not, without the prior written
consent of the Representative, (i) offer, issue, 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 caused to be filed any registration statement with the Commission relating to the offering of any shares
of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the
Company, (iii) complete any offering of debt securities of the Company, other than entering into a line of credit or term facility
with a traditional bank or (iv) enter into any swap or other agreement that transfers to another entity, in whole or in part, any of
the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii), (iii)
or (iv) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold hereunder and the issuance of the Underwriter Warrants and the
shares of Common Stock issuable upon exercise of such Underwriter Warrants, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration
Statement, the General Disclosure Package and the Prospectus, (C) the reacquisition or withholding of all or a portion of shares of Common
Stock subject to a stock award to satisfy a tax withholding obligation of the Company in connection with the vesting or exercise of such
stock award or to satisfy the purchase price or exercise price of such stock award, (D) the grant of compensatory equity-based awards,
and/or the issuance of shares of Common Stock with respect thereto, made pursuant to compensatory equity-based plans referred to in the
Registration Statement, the General Disclosure Package and the Prospectus, (E) the filing of a registration statement on Form S-8 or
any successor form thereto with respect to the registration of securities to be offered or granted pursuant to existing employee benefit
or equity incentive plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus,
(F) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the
Registration Statement, the General Disclosure Package and the Prospectus, or (G) the issuance of shares of Common Stock, restricted
stock awards or securities convertible into or exercisable or exchangeable for shares of Common Stock in connection with (i) the acquisition
of the securities, business, property or other assets of another Person or pursuant to any employee benefit plan assumed in connection
with any such acquisition, (ii) joint ventures, (iii) commercial relationships or (iv) other strategic transactions, provided that
the aggregate number of shares of Common Stock, restricted stock awards and shares of Common Stock issuable upon the conversion, exercise
or exchange of securities (on an as converted or as exercised basis, as the case may be) issued pursuant to this clause (G) shall not
exceed 10% of the total number of shares of Common Stock issued and outstanding immediately following the issuance and sale of the Securities
at the Closing Time pursuant hereto; and provided, further, that each recipient of shares of Common
Stock, restricted stock awards or securities convertible into or exercisable or exchangeable for shares of Common Stock pursuant to this
clause agrees to be bound by the terms of the lock-up or shall execute a lock-up agreement substantially in the form of Exhibit
A hereto. Notwithstanding anything to the contrary herein, the Company shall cause an option holder who is not a holder of any
shares of Common Stock to execute a lock-up agreement in the form of Exhibit A hereto at the time such holder exercises his or
her option during a period of one (1) year from the date of the Prospectus.
(j) Waiver
Press Release. If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up
agreement described in Section 5(j) hereof for an officer or director of the Company and provides the Company with notice of the impending
release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the
impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service
at least two business days before the effective date of the release or waiver.
(k) Reporting
Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report
the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(l) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it will not
make any offer relating to the 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 Representative will be deemed to have consented to the Issuer Free
Writing Prospectuses listed on Schedule B-2 hereto and any “road show that is a written communication” within
the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated or agrees that
it will treat each such free writing prospectus consented to, or deemed consented to, by the Representative 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, any preliminary prospectus
or the Prospectus, which has not been superseded or modified, 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 Representative and will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(m) Certification
Regarding Beneficial Owners. The Company will deliver to the Representative, on the date of execution of this Agreement, a properly
completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation,
and the Company undertakes to provide such additional supporting documentation as the Representative may reasonably request in connection
with the verification of the foregoing certification.
(o) Testing-the-Waters
Materials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an
event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly
amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement
or omission.
(p) Emerging
Growth Company Status. The Company will promptly notify the Representative 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 Securities within the meaning of the 1933 Act and (ii) completion
of the one (1) year restricted period referred to in Section 3(i).
SECTION 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed
and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus,
each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates or
security entitlements for the Securities to the Underwriters, including any stock transfer and/or stamp taxes, if any, payable upon transfer
of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors,
(v) the filings fees and expenses for the qualification of the Securities under securities laws in accordance with the provisions
of Section 3(e) hereof, (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses
of the Company relating to investor presentations on any “road show” (including any costs associated with the use of a third-party
electronic road show service) undertaken in connection with the marketing of the Securities, including without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company in connection with
the road show presentations, travel and lodging expenses of the Representative and officers of the Company and any such consultants,
(viii) the filing fees incident to the review by FINRA of the terms of the sale of the Securities, (ix) the fees and expenses incurred
in connection with the listing of the Securities on the Nasdaq Capital Markets; (x) the costs and expenses related to deal tracking software,
reproduction costs; (xi) cost of directors’ and officers’ background check(s) and investigations; (xii) out-of-pocket costs
of an escrow agent or clearing agent, as applicable; (xiii) tombstones and marketing-related expenses; and (xiv) the costs and expenses
(including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with
the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained
in the third sentence of Section 1(a)(ii). Except as provided for by this Agreement, the Underwriters will pay all of their own expenses, provided,
that on the Closing Time the Company shall reimburse the Representative for up to $175,000 for all of its expenses including legal fees
and expenses of Representative’s own counsel, expenses under subsections 4(a)(i)-(xiv) and other reasonable out-of-pocket expenses
incurred in connection with the offering by deduction from the net proceeds of the Offering contemplated herein. The Company further
agrees that, in addition to the expenses payable pursuant to this Section 4(a), on the Closing Time it shall pay to the Representative,
by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense allowance equal to 1.0% of the gross
proceeds received by the Company from the sale of the Securities. Any advance received by the Representative will be reimbursed to the
Company to the extent not actually incurred in compliance with FINRA Rule 5110(g)(4)(A).
(b) Termination
of Agreement. If this Agreement is terminated by the Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or (iii) or Section 10 hereof, the Company shall reimburse the Underwriters for their reasonable and documented out-of-pocket expenses
that were actually incurred, including the reasonable and documented fees and disbursements of counsel for the Underwriters; provided that,
if this Agreement is terminated by the Representative pursuant to Section 10 hereof, the Company will have no obligation to reimburse
any defaulting Underwriter; provided further that, any reimbursement owed pursuant to this subsection 4(b) shall remain
subject to the limitations on reimbursement provided for in subsection 4(a) hereof.
SECTION 5. Conditions
of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness
of Registration Statement; Rule 430A Information. The Registration Statement, including any Rule 462(b) Registration Statement, has
become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 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; and the Company has complied with each request (if any) from the Commission for additional information. A 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.
(b) Opinion
and Negative Assurance Letters of Counsel for Company.
(i) Opinion
of Xxxxxxx LLP. At the Closing Time, the Representative shall have received the opinion, dated the Closing Time, of Xxxxxxx LLP,
counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(ii) Negative
Assurance Letter of Xxxxxxx LLP. At the Closing Time, the Representative shall have received a negative assurance letter, dated the
Closing Time, of Xxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(iii) Negative
Assurance Letter of Xxxxxx Xxxxxxxxx LLC. At the Closing Time, the Representative shall have received a negative assurance letter
addressing healthcare regulatory disclosures, dated the Closing Time, of Xxxxxx Xxxxxxxxx LLC, healthcare regulatory counsel for the
Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representative shall have received the opinion, dated the Closing Time, of
Xxxxxx, Xxxxxx & Xxxxxxxx, LLP, counsel for the Underwriters, in form and substance reasonably satisfactory to the underwriters.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of
the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company, dated
the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) to the best of their knowledge after reasonable
investigation, the representations and warranties of the Company in this Agreement are true and correct in all material respects (except
for those representations and warranties qualified as to materiality, which shall be true and correct in all respects and except for
those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date)
with the same force and effect as though expressly made at and as of the Closing Time, (iii) to the best of their knowledge after reasonable
investigation, the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has
been issued, 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 their knowledge, contemplated.
(e) Secretary’s
Certificate. At the date of this Agreement and at the Closing Time, the Representative shall have received a certificate, dated as
of the applicable time, of the Secretary of the Company, in form and substance reasonably satisfactory to the Underwriters, as the case
may be, respectively, certifying on behalf of the Company and not in an individual capacity: (i) that each of the Company’s
Certificate of Incorporation (as the same may be amended or restated from time to time, the “Charter”) or the by-laws
of the Company (the “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 (and any pricing committee thereof) 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
(f) Chief
Financial Officer’s Certificate. At the date of this Agreement and at the Closing Time, the Representative shall have received
a certificate, dated as of the applicable time, of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory
to the Underwriters, as to the accuracy of certain data contained in the preliminary prospectus and the Prospectus, respectively.
(g) Accountant’s
Comfort Letter. At the time of the execution of this Agreement, the Representative shall have received from M&K CPAs, PLLC a
letter, dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained in
the Registration Statement, the General Disclosure Package and the Prospectus.
(h) Bring-down
Comfort Letter. At the Closing Time, the Representative shall have received from M&K CPAs, PLLC a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except
that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(i) Approval
of Listing. At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Capital Markets, subject only
to official notice of issuance.
(j) No
Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements relating to the offering of the Securities.
(k) Lock-up
Agreements. At the date of this Agreement, the Representative shall have received lock-up agreements, substantially in the form of Exhibit A hereto,
signed respectively by the persons and entities listed on Schedule C hereto. For the avoidance of doubt, the lock-up
agreements signed by the retail stockholders shall be effected through the Company sending email notifications to the retail stockholders,
with such notifications specifying the end date of the lock-up period (which is one (1) year from the date of the Prospectus).
(l) Conditions
to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Representative shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of the chief executive officer, President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion
of Xxxxxxx LLP. The opinion of Xxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(b)(i) hereof.
(iii) Negative
Assurance Letter of Xxxxxxx LLP. The negative assurance letter of Xxxxxxx LLP, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the negative assurance letter required by Section 5(b)(ii) hereof.
(iv) Negative
Assurance Letter of Xxxxxx Xxxxxxxxx LLC. The negative assurance letter of Xxxxxx Xxxxxxxxx LLC, healthcare regulatory counsel for
the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the negative assurance letter required
by Section 5(b)(iii) hereof.
(v) Opinion
of Counsel for Underwriters. The opinion of Xxxxxx, Xxxxxx & Xxxxxxxx, LLP, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(vi) Secretary’s
Certificate. The certificate of the Secretary of the Company, dated such Date of Delivery, to the same effect as the certificate
required by Section 5(e) hereof.
(vii) Chief
Financial Officer’s Certificate. The certificate of the Chief Financial Officer of the Company, dated such Date of Delivery,
to the same effect as the certificate required by Section 5(f) hereof
(viii) Bring-down
Comfort Letter. If requested by the Representative, a letter from M&K CPAs, PLLC in form and substance satisfactory to the Representative
and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representative pursuant
to Section 5(g) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(m) Additional
Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with
such documents and certificates as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated, 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
Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters.
(n) [Intentionally
left blank.]
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule
501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (the “Underwriter Indemnified Parties”)
as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information,
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary
prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any
roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged
omission in any preliminary prospectus, Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, Prospectus or in
any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement
is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Westpark), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or (ii) above (the “Expenses”) and further agrees
wherever and whenever possible to advance payment of the Expenses as they are incurred by an Underwriter Indemnified Party under this
Section 6 (a)(iii);
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including
the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with the Underwriter Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by Westpark,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) [Intentionally
left blank.]
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters,
on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters, on the other hand, in connection with
the statements or omissions, which resulted in such losses, liabilities, claims, damages or expenses, 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 hand, in connection with the offering of the Securities pursuant
to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount
received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any
such 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 by the Underwriters and the parties’ relative intent, 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 contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement
or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such
Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section
7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director
of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial
Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Securities.
SECTION 9. Termination
of Agreement.
(a) Termination.
The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has
been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable
or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq, or (iv) if trading
generally on the New York Stock Exchange or the Nasdaq stock market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission,
FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6 and 7 shall survive such termination
and remain in full force and effect.
SECTION 10. Default
by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, the Representative shall have
the right, within one (1) business day thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed such arrangements within such 24-hour
period, then the Company shall be entitled to a further one (1) business day period to procure another party or parties to purchase the
Defaulted Securities upon the terms herein set forth. If neither the Representative or nor the Company is able to procure a purchaser
for the Defaulted Securities, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter and the Company, except that the obligations with respect to
expenses to be paid or reimbursed pursuant to Section 4 and Sections 6 and 7, shall not terminate and shall remain in full force and
effect.
No action taken pursuant
to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such
default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the (i) Representative or (ii) the Company shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration
Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All
notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be directed to Westpark Capital, Inc., 0000 Xxxxxx xx xxx Xxxxx,
Xxxxx 000, Xxx Xxxxxxx, XX 00000, attention of Chief Executive Officer with copies to Xxxxxx, Xxxxxx & Xxxxxxxx, LLP, 000 Xxxx Xxxxxx
Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, XX 00000 attention of Xxxxxx X. Xxxxxxx, Esq. Notices to the Company shall be directed to it
at Xxxx Health MD, Inc., attention of Chief Executive Officer, with copies to Xxxxxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
XX 00000, attention of Xxxx X. Xxxxx, Esq.
SECTION 12. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand,
and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in connection with
the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is
not the agent or fiduciary of the Company, any of its subsidiaries or its respective stockholders, creditors, employees or any other
party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to
the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising
the Company or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering
of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters
have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering of the Securities and the
Company has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate,
and (f) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation,
investment advice or solicitation of any action by the Underwriters with respect to any entity or natural person.
SECTION 13. [Intentionally
left blank.]
SECTION 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than
the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representative, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representative, and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial
by Jury. 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.
SECTION 16. GOVERNING
LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent
to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States
of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located
in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court
(a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has
been brought in an inconvenient forum.
SECTION 18. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Electronic signatures complying with the New York Electronic Signatures and Records
Act (N.Y. State Tech. §§301-309), as amended from time to time, or other applicable law will be deemed original signatures
for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of
this Agreement will constitute due and sufficient delivery of such counterpart.
SECTION 20. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing correctly
sets forth the understanding between the Underwriters and the Company, please so indicate in the space
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Very truly yours |
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XXXX HEALTH MD, INC. |
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By: |
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Name: |
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Title: |
Confirmed as of the date first written above,
on behalf of itself and as Representative
of the several Underwriters named on Schedule A
hereto:
WESTPARK CAPITAL, INC. |
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By: |
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Name: |
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Title: |
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SCHEDULE A
The initial public offering price per share for the Securities shall
be $[--].
The purchase price per share for the Securities
to be paid by the several Underwriters shall be $[--], being an amount equal to the initial public offering price set forth above less
$[--] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable
on the Initial Securities but not payable on the Option Securities.
Name of Underwriter | |
Number
of Initial Securities | |
WestPark Capital, Inc. | |
| 1,350,000 | |
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Total | |
| 1,350,000 | |
SCHEDULE B-1
Pricing Terms
| 1. | The Company is selling 1,350,000 shares of Common Stock. |
| 2. | The Company has granted an option to the Underwriters, severally
and not jointly, to purchase up to an additional 202,500 shares of Common Stock. |
| 3. | The initial public offering price per share for the Securities shall
be $[--]. |
SCHEDULE B-2
Free Writing Prospectuses
SCHEDULE B-3
Written Testing-the-Waters Communications
SCHEDULE C
List of Persons and Entities Subject to
Lock-up
Exhibit A
FORM OF LOCK-UP AGREEMENT
________________, 202_
WESTPARK CAPITAL, INC.
As Representative of the
several Underwriters listed
in Schedule A hereto
c/o WestPark Capital, Inc.
1900 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, XX 00000
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Re: |
Proposed Initial Public Offering by Xxxx Health MD, Inc. |
Dear Ladies & Gentlemen:
The undersigned, a stockholder
and/or an officer and/or director of Xxxx Health MD, Inc., a Maryland corporation (the “Company”), understands that
WestPark Capital, Inc. (“Westpark”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with the Company providing for the public offering (the “Public Offering”) of shares of the Company’s common
stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will
confer upon the undersigned as a stockholder and/or an officer and/or director of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting
Agreement that, during the period beginning on the date hereof and ending on the date that is one (1) year from the date of the Underwriting
Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of Westpark, (i) directly
or indirectly, 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 or otherwise transfer or dispose of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for shares of Common Stock, whether now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”),
or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially
submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership
of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of Common Stock or other securities,
in cash or otherwise. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing
provisions shall be equally applicable to any issuer-directed securities the undersigned may purchase in the Public Offering.
If the undersigned is an
officer or director of the Company, (1) Westpark agrees that, at least three business days before the effective date of any release or
waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Westpark will notify the Company of the
impending release or waiver, and (2) 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 business days before the effective date of the release or waiver. Any release
or waiver granted by Westpark hereunder to any such officer or director shall only be effective two business days after the publication
date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit
a transfer not for consideration and (ii) 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 the transfer.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may, without the prior written consent of Westpark:
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a) |
transfer Lock-Up Securities,
provided that (1) Westpark receives a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee,
or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) in the case of clauses (i)
through (iv) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission
(the “Commission”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report
regarding such transfers during the Lock-Up Period: |
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(i) |
as a bona fide gift
or gifts; or |
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(ii) |
to any trust for the direct
or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or |
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(iii) |
as a distribution to limited
partners, members, stockholders or other equity holders of the undersigned; or |
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(iv) |
to the undersigned’s
affiliates or to any investment fund or other entity that, directly or indirectly, controls or manages, is controlled or managed
by, or is under common control or management with, the undersigned; or |
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(v) |
by will or intestate succession
upon the death of the undersigned, provided that, any filing under Section 16 of the Exchange Act made during the Lock-Up Period
shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described above; or |
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(vi) |
pursuant to a court or
regulatory agency order, a qualified domestic order or in connection with a divorce settlement provided that, any filing under Section
16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to
the circumstances described above; |
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b) |
exercise any rights to
purchase, exchange or convert any stock options granted to the undersigned pursuant to the Company’s equity incentive plans
referred to in the prospectus relating to the Public Offering, or any warrants or other securities convertible into or exercisable
or exchangeable for shares of Common Stock, which warrants or other securities are described in the prospectus relating to the Public
Offering, provided that (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate
in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) the underlying shares of Common
Stock continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (2) the undersigned does not
otherwise voluntarily effect any other public filings or reports regarding such exercise during the Lock-Up Period; |
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c) |
sell or otherwise transfer
Lock-Up Securities to the Company in connection with the termination of the undersigned’s employment or other service with
the Company, provided that, (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate
in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) no Lock-Up Securities were sold
by the reporting person other than such transfers to the Company as described above and (2) the undersigned does not otherwise voluntarily
effect any other public filings or reports regarding such transfers during the Lock-Up Period; |
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d) |
transfer Lock-Up Securities
pursuant to a bona fide third-party tender offer, or in connection with a merger, consolidation or other similar transaction approved
by the Company’s board of directors, made to all holders of the Company’s capital stock involving a change of control
of the Company; provided that, in the event that such tender offer, merger, consolidation or other transaction is not completed,
such securities shall remain subject to the restrictions on transfer set forth in this lock-up agreement (for purposes hereof, “change
of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction
or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock of the Company if, after
such transaction or transactions, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities
of the Company (or the surviving entity)); |
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e) |
convert shares of preferred
stock of the Company into shares of Common Stock in connection with the consummation of the Public Offering, provided that any shares
of Common Stock received upon such conversion shall be subject to the terms of this lock-up agreement; and |
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f) |
transfer Lock-Up Securities
to the Company upon (i) a vesting event of any equity award granted under any equity incentive plan or stock purchase plan of the
Company described in the prospectus relating to the Public Offering, or (ii) upon the exercise by the undersigned of options or warrants
in accordance with clause (b) above, in each case, on a “net” or “cashless” exercise basis, and/or to cover
tax withholding obligations of the undersigned in connection therewith, provided, in each case, that (1) any filing under Section
16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (A) the filing relates
to the circumstances described above, as applicable, and (B) no Lock-Up Securities were sold by the reporting person other than such
transfers to the Company as described above and (2) the undersigned does not otherwise voluntarily effect any other public filings
or reports regarding such transfers during the Lock-Up Period. |
Notwithstanding anything
herein to the contrary, nothing in this lock-up agreement shall prevent the undersigned from establishing a 10b5-l trading plan that
complies with Rule 10b5-l under the Exchange Act (“10b5-l Trading Plan”) or from amending an existing 10b5-l Trading
Plan so long as there are no sales of Lock-Up Securities under such plan during the Lock-Up Period; and provided that,
the establishment of a 10b5-1 Trading Plan or the amendment of a 10b5-l Trading Plan, in either case, providing for sales of Lock-Up
Securities shall only be permitted if (i) the establishment or amendment of such plan is not required to be reported in any public report
or filing with the Commission or other public announcement during the Lock-Up Period, and (ii) the undersigned does not otherwise voluntarily
effect any public filing, report or announcement regarding the establishment or amendment of such plan during the Lock-Up Period. Furthermore,
the undersigned may sell shares of Common Stock purchased by the undersigned from the underwriters in the Public Offering (other than
any issuer-directed shares of Common Stock purchased in the Public Offering by an officer or director of the Company) or on the open
market following the Public Offering if and only if (i) such sales are not required to be reported during the Lock-Up Period in any public
report or filing with the Commission or other public announcement and (ii) the undersigned does not otherwise voluntarily effect any
public filing or report regarding such sales during the Lock-Up Period.
The undersigned acknowledges
and agrees that the underwriters have not provided any recommendation or investment advice nor have the underwriters solicited any action
from the undersigned with respect to the Public Offering of the shares and the undersigned has consulted their own legal, accounting,
financial, regulatory and tax advisors to the extent deemed appropriate.
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 Lock-Up Securities except in compliance with the foregoing restrictions.
The undersigned understands
that, if (1) the execution of the Underwriting Agreement in connection with the Public Offering shall not have occurred on or before
March 31, 2023, (2) the Company files an application to withdraw the registration statement relating to the Public Offering, (3) the
Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment
for and delivery of the Common Stock to be sold thereunder, (4) Westpark, on behalf of the underwriters, advises the Company, or the
Company advises Westpark, in each case in writing, prior to the execution of the Underwriting Agreement, that they have determined not
to proceed with the Public Offering, the undersigned shall be released from all obligations under this lock-up agreement; provided, however,
that in the case of (1), the Company may, by written notice to the undersigned prior to such date, extend such date for a period of up
to three additional months. This lock-up agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx or xxx.xxxxxxxx.xxx) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature page as follows]
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Very truly yours, |
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Signature: |
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Print Name: |
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Entity Name,
if applicable: |
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[Signature Page to the Lock-Up Agreement]
Exhibit B
FORM
OF PRESS RELEASE
TO
BE ISSUED PURSUANT TO SECTION 3(j)
[Date]
Xxxx Health MD, Inc. (the “Company”)
announced today that Westpark Capital, Inc., the lead book-running manager in the Company’s recent public sale of [--] shares of
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 for sale
of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered
or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as
amended.