Exhibit 1.1
UNDERWRITING AGREEMENT
between
MICROLIN BIO, INC.
and
BREAN CAPITAL, LLC, SUMMER STREET RESEARCH
PARTNERS and
XXXXXX ASSOCIATES, L.P.,
as Representatives of the Several Underwriters
MICROLIN BIO, INC.
UNDERWRITING AGREEMENT
New York, New York
[•], 2014
Brean Capital, LLC
Summer Street Research Partners
Xxxxxx Associates, L.P.
As Representatives of the several Underwriters named on Schedule
1 attached hereto
c/o Brean Capital, LLC
1345 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned, MicroLin
Bio, Inc. a corporation formed under the laws of the State of Delaware (collectively with its affiliates, including, without limitation,
all entities disclosed or described in the Registration Statement (as hereinafter defined) as being affiliates of MicroLin Bio,
Inc., the “Company”), hereby confirms its agreement (this “Agreement”) with Brean Capital,
LLC, Summer Street Research Partners and Xxxxxx Associates, L.P. (hereinafter referred to as “you” (including its correlatives)
or the “Representatives”) and with the other underwriters named on Schedule 1 hereto for which the Representatives
are acting as representatives (the Representatives and such other underwriters being collectively called the “Underwriters”
or, individually, an “Underwriter”) as follows:
1. Purchase
and Sale of Shares.
1.1 Firm
Shares.
1.1.1. Nature
and Purchase of Firm Shares.
(i) On
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the several Underwriters, an aggregate of (i) [•] shares (“Firm Shares”)
of the Company’s common stock, par value $ 0.000001 per share
(the “Common Stock”) and (ii) warrants (the “Firm Warrants”) to purchase up to [•] of
Common Stock of the Company (the “Firm Warrant Shares”).
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares and Firm Warrants set forth
opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $[•] per
share and $[•] per warrant (92.5% of the public offering price). The Firm Shares and Firm Warrants are to be offered initially
to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2. Shares
Payment and Delivery.
(i) Delivery
of and payment for the Firm Shares and Firm Warrants shall be made at 10:00 a.m., Eastern time, on the third (3rd) Business
Day following the effective date (the “Effective Date”) of the Registration Statement (as defined in Section
2.1.1 below) (or the fourth (4th) Business Day following the Effective Date if the Registration Statement is declared
effective after 4:01 p.m., Eastern time) or at such earlier time as shall be agreed upon by the Representatives and the Company,
at the offices of Xxxxxxx Procter LLP, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Representative Counsel”), or at such other
place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representatives and the Company.
The hour and date of delivery of and payment for the Firm Shares and Firm Warrants is called the “Closing Date.”
(ii) Payment
for the Firm Shares and Firm Warrants shall be made on the Closing Date by wire transfer in federal (same day) funds, payable to
the order of the Company upon delivery of the certificates (in form and substance reasonably satisfactory to the Representatives)
representing the Firm Shares and Firm Warrants (or, in the case of the Firm Shares, through the facilities of the Depository Trust
Company (“DTC”)) for the account of the Underwriters. The Firm Shares and Firm Warrants shall be registered
in such name or names and in such authorized denominations as the Representatives may request in writing at least two (2) full
Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Shares and Firm Warrants
except upon tender of payment by the Representatives for all of the Firm Shares and Firm Warrants. The term “Business
Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized
or obligated by law to close in New York, New York.
1.2 Over-allotment
Option.
1.2.1. Option
Shares. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Shares and
Firm Warrants, the Company hereby grants to the Underwriters an option to purchase up to an aggregate of (i) [•] additional
shares of Common Stock (the “Option Shares”) and/or (ii) additional warrants to purchase shares of Common Stock
(the “Option Warrants”), representing fifteen percent (15%) of the Firm Shares and Firm Warrants, respectively,
sold in the Offering (as defined below), from the Company (the “Over-allotment Option”). The purchase price
to be paid per Option Share shall be equal to the price per Firm Share set forth in Section 1.1.1 hereof and the purchase price
paid per Option Warrant shall be equal to the price per Firm Warrant set forth in Section 1.1.1. The Firm Shares and the Option
Shares are hereinafter referred to together as the “Public Shares,” the Firm Warrants and Option Warrants
are hereinafter referred to together as the “Public Warrants” and the Public Shares and Public Warrants are
hereinafter referred to together as the “Public Securities.” The shares of Common Stock issuable upon exercise
of the Firm Warrants are hereinafter referred to as the “Firm Warrant Shares,” the shares of Common Stock issuable
upon exercise of the Option Warrants are hereinafter referred to together as the “Option Warrant Shares” and
together with the Firm Warrant Shares, the “Warrant Shares.” The Public Shares, the Public Warrants and the
Warrant Shares are hereinafter referred to as the “Securities.” Together,
the offering and sale of the Public Securities and the offer and sale of the Warrant Shares upon exercise of the Public Warrants
is hereinafter referred to as the “Offering.” The Firm Shares and the Firm Warrants shall be sold together as
a fixed combination, each consisting of one share of Common Stock and a Warrant to purchase one share of Common Stock. The Option
Shares and the Option Warrants may be sold either together or separately in any combination to be determined by the Representatives.
The Public Shares and the Public Warrants shall be immediately separable and transferable upon issuance. The terms of the Public
Warrants are set forth in the form of warrant attached as Exhibit B hereto (the “Public Warrant Agreement”).
1.2.2. Exercise
of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representatives as to
all (at any time) or any part (from time to time) of the Option Shares and/or the Option Warrants (either separately or together)
within 45 days after the Effective Date. The Representatives shall not be under any obligation to purchase any Option Shares or
Option Warrants prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by
the giving of oral notice to the Company from the Representatives, which must be confirmed in writing by overnight mail or facsimile
or other electronic transmission setting forth the number of Option Shares and/or Option Warrants (either separately or together)
to be purchased and the date and time for delivery of and payment for the Option Shares (the “Option Closing Date”),
which shall not be later than five (5) full Business Days after the date of the notice or such other time as shall be agreed upon
by the Company and the Representatives, at the offices of Representative Counsel or at such other place (including remotely
by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representatives. If such delivery
and payment for the Option Shares and/or the Option Warrants does not occur on the Closing Date, the Option Closing Date will be
as set forth in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Shares
and/or Option Warrants (either separately or together), subject to the terms and conditions set forth herein, (i) the Company shall
become obligated to sell to the Underwriters the number of Option Shares and/or Option Warrants specified in such notice and (ii)
each of the Underwriters, acting severally and not jointly, shall purchase that portion of the total number of Option Shares and/or
Option Warrants then being purchased as set forth in Schedule 1 opposite the name of such Underwriter.
1.2.3. Payment
and Delivery. Payment for the Option Shares and/or Option Warrants shall be made on the Option Closing Date by wire transfer
in federal (same day) funds, payable to the order of the Company upon delivery to you of certificates (in form and substance reasonably
satisfactory to the Representatives) representing the Option Shares and/or Option Warrants (or, in the case of the Option Shares,
through the facilities of DTC) for the account of the Underwriters. The Option Shares and Option Warrants shall be registered in
such name or names and in such authorized denominations as the Representatives may request in writing at least two (2) full Business
Days prior to the Option Closing Date. The Company shall not be obligated to sell or deliver the Option Shares and Option Warrants
except upon tender of payment by the Representatives for applicable Option Shares and/or Option Warrants.
1.3 Representative’s
Warrants.
1.3.1. Purchase
Warrants. The Company hereby agrees to issue and sell to Brean Capital, LLC and Summer Street Research Partners (and/or their
designees) on the Closing Date warrants (“Representative’s Warrant”) for the purchase of an aggregate
of [•] shares of Common Stock, representing 5% of the Public Shares (both the Firm Shares and Option Shares). The Representative’s
Warrant agreement, in the form attached hereto as Exhibit A (the “Representative’s Warrant Agreement”),
shall provide for the Representative’s Warrant to be exercisable, in whole or in part, commencing on a date hereof and expiring
on the five-year anniversary of the effective date of the Registration Statement at an initial exercise price per share of Common
Stock of $[•], which is equal to 120% of the initial public offering price of the Firm Shares. The Representative’s
Warrant and the shares of Common Stock issuable upon exercise thereof are hereinafter referred to together as the “Representative’s
Securities.” The Representatives understand and agree that there are significant restrictions pursuant to FINRA Rule
5110 against transferring the Representative’s Warrant and the underlying shares of Common Stock during the one hundred eighty
(180) days after the effective date of the Registration Statement and by its acceptance thereof shall agree that it will not sell,
transfer, assign, pledge or hypothecate the Representative’s Warrant, or any portion thereof, or be the subject of any hedging,
short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for
a period of one hundred eighty (180) days following the effective date of the registration statement to anyone other than (i) an
Underwriter or a selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Representatives
or of any such Underwriter or selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions.
1.3.2. Delivery.
Delivery of the Representative’s Warrant Agreement shall be made on the Closing Date and shall be issued in the name or names
and in such authorized denominations as the Representatives may request.
1.4 Public
Warrants. As partial consideration, within five (5) Business Days from the exercise of each of the Public Warrants, the Company
shall pay to the Representatives, in cash, a commission equal to seven and one half percent (7.5%) of the gross proceeds received
by the Company from each such exercise of the Public Warrants. The Company shall, at the request of any of the Representatives,
promptly provide the Representatives a schedule identifying the number of Public Warrants issued and exercised to date.
2. Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined
below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1 Filing
of Registration Statement.
2.1.1. Pursuant
to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-193315), including any related prospectus
or prospectuses, for the registration of the Securities and the Representative’s Securities under the Securities Act of 1933,
as amended (the “Securities Act”), which registration statement and amendment or amendments have been prepared
by the Company in all material respects in conformity with the requirements of the Securities Act and the rules and regulations
of the Commission under the Securities Act (the “Securities Act Regulations”) and will contain all material
statements that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except
as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration
statement became effective (including the Preliminary Prospectus included in the registration statement, financial statements,
schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a
part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations (the “Rule
430A Information”)), is referred to herein as the “Registration Statement.” If the Company files any
registration statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration
Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been
declared effective by the Commission on the date hereof.
Each prospectus used
prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used
after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.”
The Preliminary Prospectus, subject to completion, dated [•], 2014, that was included in the Registration Statement immediately
prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in the form
first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.” Any reference
to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included
in the Registration Statement.
“Applicable
Time” means [TIME] [a.m./p.m.], Eastern time, on the date of this Agreement.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities
Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined
in Rule 405 of the Securities Act Regulations) relating to the 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 (the “Bona Fide Electronic
Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Pricing Disclosure
Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing
Prospectus and the information included on Schedule 2-A hereto, all considered together.
2.1.2. Pursuant
to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 001-36497) providing for the registration
pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the
shares of Common Stock. The registration of the shares of Common Stock under the Exchange Act has been declared effective by the
Commission on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the shares of Common Stock under the Exchange Act, nor has the Company received any notification that the Commission
is contemplating terminating such registration.
2.2 Stock
Exchange Listing. Assuming that at least 300 round-lot holders have been created as part of this Offering and, if required
by the Exchange, the Representatives have provided a letter to this effect to the Exchange (as hereafter defined), the shares of
Common Stock have been approved for listing on The NASDAQ Stock Market (the “Exchange”), and the Company has
taken no action designed to, or reasonably likely to have the effect of, delisting the shares of Common Stock from the Exchange,
nor has the Company received any notification that the Exchange is contemplating terminating such listing except as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.3 No
Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any
order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied
with each request (if any) from the Commission for additional information.
2.4 Disclosures
in Registration Statement.
2.4.1. Compliance
with Securities Act and 10b-5 Representation.
(i) Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material
respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including
the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto,
and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of
the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection
with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Neither
the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or
at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits
or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The
Pricing Disclosure Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), did not, does
not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Limited Use Free
Writing Prospectus does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements
omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by
the Representatives expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus or any amendment
thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter
consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: the first sentence
of the third paragraph (the “Underwriters’ Information”); and
(iv) Neither
the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of
any filing with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or
will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to the Underwriters’ Information.
2.4.2. Disclosure
of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other
documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that
have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company
is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly
executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the
Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that
the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments
has been assigned by the Company, and, except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s
knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder.
To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will
not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental
Entity”), including, without limitation, those relating to environmental laws and regulations.
2.4.3. Prior
Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit
of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
2.4.4. Regulations.
The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal,
state, local and all foreign regulation regarding the Offering and the Company’s business as currently contemplated are correct
in all material respects and no other such regulations are required to be disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus which are not so disclosed.
2.5 Changes
After Dates in Registration Statement.
2.5.1. No
Material Adverse Change. Since the respective dates as of which information is provided in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material
adverse change in the financial position or results of operations of the Company, nor any change or development that, singularly
or in the aggregate, would involve a material adverse change or a prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, business, assets or prospects of the Company (a “Material Adverse Change”);
(ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement;
and (iii) no officer or director of the Company has resigned from any position with the Company.
2.5.2. Recent
Securities Transactions, etc. Subsequent to the respective dates as of which information is provided in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities
or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or
made any other distribution on or in respect to its capital stock.
2.6 Independent
Accountants. To the knowledge of the Company, EisnerAmper LLP (the “Auditor”), whose report is filed with
the Commission as part of the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered
public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight
Board. The Auditor has not, during the periods covered by the financial statements included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section
10A(g) of the Exchange Act.
2.7 Financial
Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position and the results of operations
of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity
with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved
(provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material
in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein. Except as included therein, no historical or pro forma
financial statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus
under the Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the
related notes, if any, included in the Registration Statement, the Pricing Disclosure Package and the Prospectus present fairly
the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation
S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations),
and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future
effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures,
capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, (a) the Company has not incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid
any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been any change in the
capital stock of the Company, or, other than in the ordinary course of business, any grants under any stock compensation plan,
and (d) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.
2.8 Authorized
Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, the duly authorized, issued and outstanding capitalization as set forth therein. Based on the assumptions
stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date
the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the
Pricing Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time, and on the Closing Date and any
Option Closing Date, there will be no stock options, warrants, or other rights to purchase or otherwise acquire any authorized,
but unissued shares of Common Stock of the Company or any security convertible or exercisable into shares of Common Stock of the
Company, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible
securities.
2.9 Valid
Issuance of Securities, etc.
2.9.1. Outstanding
Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement
have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission
with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted
by the Company. The authorized shares of Common Stock conform in all material respects to all statements relating thereto contained
in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The offers and sales of the outstanding shares
of Common Stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue
sky” laws or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration
requirements.
2.9.2. Securities
Sold Pursuant to this Agreement. The Securities and Representative’s Securities have been duly authorized for
issuance and sale and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are
not and will not be subject to personal liability by reason of being such holders; except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Securities and Representative’s Securities are not and will not be
subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company;
and all corporate action required to be taken for the authorization, issuance and sale of the Securities and Representative’s
Securities has been duly and validly taken. The Securities and Representative’s Securities conform in all material respects
to all statements with respect thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
The shares of Common Stock issuable upon exercise of both of the Public Warrants and the Representative’s Warrant have been
duly authorized and reserved for issuance by all necessary corporate action on the part of the Company and when paid for and issued
in accordance with the Public Warrants and the Representative’s Warrant, respectively, such shares of Common Stock will be
validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason
of being such holders; and, except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
such shares of Common Stock are not and will not be subject to the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company.
2.10 Registration
Rights of Third Parties. No holders of any securities of the Company or any rights exercisable for or convertible or exchangeable
into securities of the Company have the right to require the Company to register any such securities of the Company under the Securities
Act or to include any such securities in a registration statement to be filed by the Company.
2.11 Validity
and Binding Effect of Agreements. This Agreement, the Public Warrant Agreement and the Representative’s Warrant Agreement
have been duly and validly authorized by the Company, and, when executed and delivered, will constitute, the valid and binding
agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as
such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state
securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may
be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.12 No
Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Public Warrant Agreement, the
Representative’s Warrant Agreement and all ancillary documents, the consummation by the Company of the transactions herein
and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without
the giving of notice or the lapse of time or both: (i) result in a breach of, or conflict with any of the terms and provisions
of, or constitute a default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party;
(ii) result in any violation of the provisions of the Company’s Certificate of Incorporation (as the same may be amended
or restated from time to time, the “Charter”) or the by-laws of the Company; or (iii) violate any existing
applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof (including, without
limitation, those promulgated by the Food and Drug Administration of the U.S. Department of Health and Human Services (the “FDA”)
or by any foreign, federal, state or local regulatory authority performing functions similar to those performed by the FDA), except,
as to (i) and (iii), where such breach, conflict or violation would not have or reasonably be expected to result in a Material
Adverse Change.
2.13 No
Defaults; Violations. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
no material default exists in the due performance and observance of any term, covenant or condition of any material license, contract,
indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation
for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be
bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of (i) any term or
provision of its Charter or by-laws, or (ii) in violation of any franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any Governmental Entity, except in the case of clause (ii) for violations that would not have or reasonably
be expected to result in a Material Adverse Change.
2.14 Corporate
Power; Licenses; Consents.
2.14.1. Conduct
of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business
purpose as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except for such authorizations,
approvals, orders, licenses, certificates and permits the lack of which would not have or reasonably be expected to result in a
Material Adverse Change.
2.14.2. Transactions
Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions
and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained.
No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid
issuance, sale and delivery of the Securities and the consummation of the transactions and agreements contemplated by this Agreement,
the Public Warrant Agreement and the Representative’s Warrant Agreement and as contemplated by the Registration Statement,
the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal and state securities laws and the
rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.15 D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s directors and officers immediately prior to the Offering (the “Insiders”)
as supplemented by all information concerning the Company’s directors, officers and principal stockholders as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, as well as in the Lock-Up Agreement (as defined
in Section 2.26 below), provided to the Underwriters, is true and correct in all material respects and, except as described in
the Registration Statement, the Company has not become aware of any information which would cause the information disclosed in
the Questionnaires to become materially inaccurate and incorrect.
2.16 Litigation;
Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental
proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s
knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus or in connection with the Company’s listing application for the listing of the Public Shares and
Warrant Shares on the Exchange.
2.17 Good
Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws
of the State of Delaware as of the date hereof, and is duly qualified to do business and is in good standing in each other jurisdiction
in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to
qualify, singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.18 Insurance.
The Company carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks
which the Company believes are adequate, and all such insurance is in full force and effect. The Company has no reason to believe
that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change.
2.19 Transactions
Affecting Disclosure to FINRA.
2.19.1. Finder’s
Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims,
payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee
by the Company or, to the Company’s knowledge, any Insider with respect to the sale of the Securities hereunder or any other
arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its stockholders that may
affect the Underwriters’ compensation, as determined by FINRA.
2.19.2. Payments
Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s
fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company
persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the Effective Date,
other than the payment to the Underwriters as provided hereunder in connection with the Offering.
2.19.3. Use
of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its
affiliates, except as specifically authorized herein.
2.19.4. FINRA
Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the Company's
securities or (iii) beneficial owner of the Company's unregistered equity securities which were acquired during the 180-day period
immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA member participating
in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.19.5. Information.
All information provided by the Company in its FINRA Questionnaire to Representative Counsel specifically for use by Representative
Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete
in all material respects.
2.20 Foreign
Corrupt Practices Act. None of the Company or, to the Company’s knowledge, any director, officer, agent, employee or
affiliate of the Company or any other person acting on behalf of the Company, has, directly or indirectly, given or agreed to give
any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any
customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality
of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who
was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed
transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation
or proceeding, (ii) if not given in the past, might have had a Material Adverse Change or (iii) if not continued in the
future, might adversely affect the assets, business, operations or prospects of the Company. The Company has taken reasonable steps
to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with
the Foreign Corrupt Practices Act of 1977, as amended.
2.21 Compliance
with OFAC. None of the Company or, to the Company’s knowledge, any director, officer, agent, employee or affiliate of
the Company or any other person acting on behalf of the Company, is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), and the Company will not,
directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
2.22 Money
Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
2.23 Regulatory.
All preclinical and clinical studies conducted by or on behalf of the Company that are material to the Company are or have been
adequately described in the Registration Statement, the Pricing Disclosure Package and the Prospectus in all material respects.
The clinical and preclinical studies conducted by or on behalf of the Company that are described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus or the results of which are referred to in the Registration Statement, the Pricing
Disclosure Package and the Prospectus were and, if still ongoing, are being conducted in material compliance with all laws
and regulations applicable thereto in the jurisdictions in which they are being conducted and with all laws and regulations applicable
to preclinical and clinical studies from which data will be submitted to support marketing approval. The descriptions in
the Registration Statement, the Pricing Disclosure Package and the Prospectus of the results of such studies are accurate and complete
in all material respects and fairly present the data derived from such studies, and the Company has no knowledge of, or reason
to believe that, any clinical study the aggregate results of which are inconsistent with or otherwise call into question the results
of any clinical study conducted by or on behalf of the Company that are described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus or the results of which are referred to in the Registration Statement, the Pricing Disclosure Package
and the Prospectus. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
the Company has not received any written notices or statements from the FDA, the European Medicines Agency (“EMA”)
or any other governmental agency or authority requiring, requesting or suggesting termination, suspension or material modification
for or of any clinical or preclinical studies that are described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus or the results of which are referred to in the Registration Statement, the Pricing Disclosure Package and the
Prospectus. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
has not received any written notices or statements from the FDA, the EMA or any other governmental agency, and otherwise has no
knowledge of, or reason to believe that (i) any investigational new drug application for potential product of the Company is or
has been rejected or determined to be non-provable or conditionally approvable; and (ii) any license, approval, permit or authorization
to conduct any clinical trial of any potential product of the Company has been, will be or may be suspended, revoked, modified
or limited.
2.24 Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to Representative
Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.25 Lock-Up
Agreements. Schedule 3 hereto contains a complete and accurate list of the Company’s officers, directors and each
owner of the Company’s outstanding shares of Common Stock (or securities convertible or exercisable into shares of Common
Stock), as well as other holders of shares of Common Stock heretofore agreed upon between you and the Company (collectively, the
“Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representatives an
executed Lock-Up Agreement, in the form attached hereto as Exhibit B (the “Lock-Up Agreement”),
prior to the execution of this Agreement.
2.26 Subsidiaries.
The Company has no direct or indirect subsidiaries.
2.27 Related
Party Transactions. There are no business relationships or related party transactions involving the Company or any other person
required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described
as required.
2.28 Board
of Directors. Upon the consummation of the Offering, (i) the Board of Directors of the Company will be comprised of the persons
set forth under the heading of the Pricing Prospectus and the Prospectus captioned “Management.”; (ii) the qualifications
of the persons serving as board members and the overall composition of the board will comply with the Exchange Act, the regulations
promulgated under the Exchange Act (the “Exchange Act Regulations”), the Xxxxxxxx-Xxxxx Act of 2002 and the
rules promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”) applicable to the Company and the listing rules of the
Exchange; (iii) at least one member of the Audit Committee of the Board of Directors of the Company will qualify as an “audit
committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange; and (iv)
at least a majority of the persons serving on the Board of Directors will qualify as “independent,” as defined under
the listing rules of the Exchange.
2.29 Xxxxxxxx-Xxxxx
Compliance.
2.29.1. Disclosure
Controls. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15 of the Exchange
Act Regulations, and such controls and procedures are effective to ensure that all material information concerning the Company
will be made known on a timely basis to the individuals responsible for the preparation of the Company’s Exchange Act filings
and other public disclosure documents.
2.29.2. Compliance.
The Company is, or at the Applicable Time and on the Closing Date will be, in material compliance with the provisions of the Xxxxxxxx-Xxxxx
Act applicable to it, and has implemented or will implement such programs and has taken reasonable steps to ensure the Company’s
future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the material provisions
of the Xxxxxxxx-Xxxxx Act.
2.30 Accounting
Controls. Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, based on the evaluation
of its disclosure controls and procedures, the Company is not aware of (i) any material weakness or significant deficiency in the
design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal controls; or (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal controls. The Company is actively taking steps to
ensure that it will be in compliance with all other applicable provisions of the Xxxxxxxx-Xxxxx Act, any related rules and regulations
promulgated by the Commission and corporate governance requirements under applicable NASDAQ regulations upon the effectiveness
of such provisions and has no reason to believe that it will not comply with such provisions at the time of effectiveness. There
is and has been no failure on the part of the Company or any of its directors or officers, in their capacities as such, to comply
with any provision of the Xxxxxxxx-Xxxxx Act, including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications.
2.31 No
Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds
thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to
register as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
2.32 No
Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent.
2.33 Intellectual
Property Rights. The Company owns or possesses or has valid rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar
rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company as currently
carried on and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. To the knowledge
of the Company, no action or use by the Company necessary for the conduct of its business as currently carried on and as described
in the Registration Statement and the Prospectus will involve or give rise to any infringement of, or license or similar fees for,
any Intellectual Property Rights of others. The Company has not received any notice alleging any such infringement, fee or conflict
with asserted Intellectual Property Rights of others. Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (A) to the knowledge of the Company, there is no infringement, misappropriation or violation by third
parties of any of the Intellectual Property Rights owned by the Company that would, individually or in the aggregate, together
with any other claims in this Section 2.33, reasonably be expected to result in a Material Adverse Change; (B) there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of the Company
in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for
any such claim, that would, individually or in the aggregate, together with any other claims in this Section 2.33, reasonably be
expected to result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company and, to the knowledge
of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction
invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights, and the Company
is unaware of any facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together
with any other claims in this Section 2.33, reasonably be expected to result in a Material Adverse Change; (D) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates
or otherwise violates any Intellectual Property Rights or other proprietary rights of others, the Company has not received any
written notice of such claim and the Company is unaware of any other facts which would form a reasonable basis for any such claim
that would, individually or in the aggregate, together with any other claims in this Section 2.33, reasonably be expected to result
in a Material Adverse Change; and (E) 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, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the
basis of such violation relates to such employee’s employment with the Company, or actions undertaken by the employee while
employed with the Company and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change.
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. The Company is not a party to or bound by any options, licenses or agreements with respect
to the Intellectual Property Rights of any other person or entity that are required to be set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and are not described therein. The Registration Statement, the Pricing Disclosure
Package and the Prospectus contain in all material respects the same description of the matters set forth in the preceding sentence.
None of the technology employed by the Company has been obtained or is being used by the Company in violation of any contractual
obligation binding on the Company or, to the Company’s knowledge, any of its officers, directors or employees, or otherwise
in violation of the rights of any persons.
2.34 Taxes.
The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof
or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown as
due on such returns that were filed and has paid all taxes imposed on or assessed against the Company. The provisions for taxes
payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued
and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements.
Except as disclosed in writing to the Underwriters, (i) no issues have been raised (and are currently pending) by any taxing authority
in connection with any of the returns or taxes asserted as due from the Company and (ii) no waivers of statutes of limitation with
respect to the returns or collection of taxes have been given by or requested from the Company. The term “taxes”
mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any
interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns”
means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
2.35 Compliance
with Laws. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company:
(A) is and at all times has been in compliance with all statutes, rules, or regulations, including the Clinical Laboratory Improvement
Amendments of 1988, applicable to the ownership, testing, development, use, marketing, labeling, promotion, offer for sale, or
performance of any product manufactured or test offered by the Company (“Applicable Laws”), except as could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (B) has not received any FDA Form
483, notice of adverse finding, warning letter, untitled letter, or other correspondence or notice from the FDA or any other governmental
authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses
all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of
any term of any such Authorizations; (D) has not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any governmental authority or third party alleging that any product or activity
is in violation of any Applicable Laws or Authorizations and has no knowledge that any such governmental authority or third party
is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received notice
that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations
and has no knowledge that any such governmental authority is considering such action; (F) has filed, obtained, maintained or submitted
all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission);
and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued,
any safety alert, post-sale warning, “dear doctor” letter, or other notice or action relating to any product or test
or any alleged product or test defect or violation and, to the Company’s knowledge, no third party has initiated, conducted
or intends to initiate any such notice or action. The Company has not reported or received reports of any serious, unexpected adverse
event associated with any investigational product of Company.
2.36 Ineligible
Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness
of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Securities and at
the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account
any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible
issuer.
2.37 Industry
Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable
and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.38 Stock
Split. The Company has taken all necessary corporate action to effectuate a stock split of the Shares on the basis of two (2)
such shares for each one (1) issued and outstanding share thereof (the “Stock Split”), such Stock Split to be
effective no later than the first trading day of the Firm Shares following the date hereof.
2.39 Emerging
Growth Company. From the time of the initial filing of the Registration Statement with the Commission (or, if earlier, the
first date on which the Company engaged directly in or through any person authorized to act on its behalf in any Testing-the-Waters
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section
2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication”
means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
2.40 Testing-the-Waters
Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters
Communications with the written consent of the Representatives and with entities that are qualified institutional buyers within
the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501
under the Securities Act and (ii) authorized anyone other than the Representatives to engage in Testing-the-Waters Communications.
The Company confirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act.
2.41 Electronic
Road Show. If the Company makes a Bona Fide Electronic Road Show available, it shall be in compliance with Rule 433(d)(8)(ii)
of the Securities Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities
Act Regulations) is required in connection with the Offering.
2.42 Margin
Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause
any of the shares of Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of
the Federal Reserve Board.
3. Covenants
of the Company. The Company covenants and agrees as follows:
3.1 Amendments
to Registration Statement. The Company shall deliver to the Representatives, prior to filing, any amendment or supplement to
the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement
to which the Representatives shall reasonably object in writing.
3.2 Federal
Securities Laws.
3.2.1. Compliance.
The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will
notify the Representatives promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt
of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities
and Representative’s Securities for offering or sale in any jurisdiction, or of the initiation or, to the Company’s
knowledge, threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e)
of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the Offering of the Securities and Representative’s Securities.
The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner and within the
time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The Company shall use its best efforts to prevent the issuance
of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible
moment.
3.2.2. Continued
Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange
Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities
is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would be)
required by the Securities Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of Representative Counsel or counsel for the Company, to (i) amend
the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) amend
or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or the Prospectus,
as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser;
or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus, as the
case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will
promptly (A) give the Representatives notice of such event; (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply
with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies
of any such amendment or supplement; and (C) file with the Commission any such amendment or supplement; provided that the
Company shall not file or use any such amendment or supplement to which Representative Counsel shall reasonably object. The Company
will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
The Company shall give the Representatives notice of its intention to make any filing pursuant to the Exchange Act or the Exchange
Act Regulations until the later of the Closing Date and the exercise in full or expiration of the Over-allotment Option specified
in Section 1.2 hereof, will furnish the Representatives with copies of the related document(s) a reasonable amount of time prior
to such proposed filing, as the case may be, and will not file or use any such document to which Representative Counsel shall reasonably
object.
3.2.3. Exchange
Act Registration. For a period of three (3) years after the date of this Agreement, the Company shall use its best efforts
to maintain the registration of the shares of Common Stock under the Exchange Act. The Company shall not voluntarily deregister
the shares of Common Stock under the Exchange Act without the prior written consent of the Representatives, which consent shall
not be unreasonably withheld.
3.2.4. Free
Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it shall
not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained
by the Company under Rule 433; provided that the Representatives shall be deemed to have consented to each Issuer General Use Free
Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i)
that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,”
as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of
an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the
Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.
3.2.5. Testing-the-Waters
Communications. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or
occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify
the Representatives and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to
eliminate or correct such untrue statement or omission.
3.3 Delivery
to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available
to the Representatives and counsel for the Representatives, without charge, signed copies of the Registration Statement as originally
filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and
each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
3.4 Delivery
to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172,
would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
3.5 Effectiveness
and Events Requiring Notice to the Representatives. The Company shall use its commercially reasonable efforts to cause the
Registration Statement to remain effective with a current prospectus for at least nine (9) months after the Applicable Time, and
shall notify the Representatives immediately and confirm the notice in writing: (i) of the effectiveness of the Registration
Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or, to
the Company’s knowledge, the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities
commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction
or of the initiation, or, to the Company’s knowledge, the threatening, of any proceeding for that purpose; (iv) of the
mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of
the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any
event during the period described in this Section 3.5 that, in the judgment of the Company, makes any statement of a material fact
made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue or that requires the making of any
changes in (a) the Registration Statement in order to make the statements therein not misleading, or (b) in the Pricing Disclosure
Package or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any
time, the Company shall use its reasonable best efforts to obtain promptly the lifting of such order.
3.6 Review
of Financial Statements. For a period of five (5) years after the Effective Date, the Company, at its expense, shall cause
its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements
for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7 Listing.
The Company shall use its commercially reasonable efforts to maintain the listing of the shares of Common Stock (including the
Public Shares, Warrant Shares and shares of Common Stock issuable upon exercise of the Representative’s Warrant) on the Exchange
for at least three (3) years from the date of this Agreement.
3.8 Financial
Public Relations Firm. As of the Effective Date, the Company shall have retained a financial public relations firm reasonably
acceptable to the Representatives and the Company, which shall initially be [____], which firm shall be experienced in assisting
issuers in initial public offerings of securities and in their relations with their security holders, and shall retain such firm
or another firm reasonably acceptable to the Representatives for a period of not less than two (2) years after the Effective Date.
3.9 Reports
to the Representatives.
3.9.1. Periodic
Reports, etc. For a period of three (3) years after the date of this Agreement, the Company shall furnish to the Representatives
copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally
to holders of any class of its securities and also promptly furnish to the Representatives: (i) a copy of each periodic report
the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) upon the
Representatives’ written request, a copy of every press release and every news item and article with respect to the Company
or its affairs which was released by the Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv) five copies
of each registration statement filed by the Company under the Securities Act; and (v) such additional documents and information
with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time
reasonably request; provided the Representatives shall sign, if requested by the Company, a Regulation FD compliant confidentiality
agreement which is reasonably acceptable to the Representatives and Representative Counsel in connection with the Representatives’
receipt of such information. Documents filed with the Commission pursuant to its XXXXX system shall be deemed to have been delivered
to the Representatives pursuant to this Section 3.9.1.
3.9.2. Transfer
Agent; Transfer Sheets. For a period of three (3) years after the date of this Agreement, the Company shall retain a transfer
agent and registrar acceptable to the Representatives (the “Transfer Agent”) and shall furnish to the Representatives
at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representatives may
reasonably request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. VStock is acceptable
to the Representatives to act as Transfer Agent for the shares of Common Stock.
3.9.3. Trading
Reports. During such time as the Public Shares or Warrant Shares are listed on the Exchange, the Company shall
provide to the Representatives, at the Company’s expense, such reports published by Exchange relating to price trading of
the Public Shares or Warrant Shares, as the Representatives shall reasonably request.
3.10 Payment
of Expenses
3.10.1. General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date,
if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company
under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of the shares of Common Stock to be sold in the Offering (including the Option Shares) with the Commission; (b) all actual Public
Offering System filing fees associated with the review of the Offering by FINRA; (c) all fees and expenses relating to the listing
of such Public Shares, Warrant Shares and shares of Common Stock issuable upon exercise of the Representative’s Warrants
on the Exchange and such other stock exchanges as the Company and the Representatives together determine; (d) all fees, expenses
and disbursements relating to the registration or qualification of such Securities under the “blue sky” securities
laws of such states and other jurisdictions as the Representatives may reasonably designate (including, without limitation, all
filing and registration fees, and the reasonable fees and disbursements of “blue sky” counsel, it being agreed that
such fees and expenses shall not exceed $25,000 in the aggregate and shall be payable by the Company at Closing); (e) all fees,
expenses and disbursements relating to the registration, qualification or exemption of the Securities under the securities laws
of such foreign jurisdictions as the Representatives may reasonably designate; (f) the costs of all mailing and printing of the
underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any
Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as
the Representatives may reasonably deem necessary; (g) the costs and expenses of the public relations firm referred to in Section
3.8 hereof; (h) the costs of preparing, printing and delivering certificates representing the Securities; (i) fees and expenses
of the transfer agent for the shares of Common Stock; (j) stock transfer and/or stamp taxes, if any, payable upon the transfer
of securities from the Company to the Underwriters; (k) the costs associated with post-Closing advertising of the Offering in the
national editions of the Wall Street Journal and New York Times; (l) the costs associated with bound volumes of the public offering
materials which the Company or its designee shall provide within a reasonable time after the Closing Date in such quantities as
the Representatives may reasonably request; (m) the fees and expenses of the Company’s accountants; (n) the fees and expenses
of the Company’s legal counsel and other agents and representatives; (o) one half of the fees and expenses of the Underwriters’
legal counsel, such payment by the Company not to exceed $30,000; and (p) subject to a maximum of $50,000, the Underwriters’
additional actual accountable “road show” expenses for the Offering as well as commemorative mementos and lucite tombstones
which the Company or its designee shall provide within a reasonable time after the Closing Date in such quantities as the Representatives
may reasonably request,. The Representatives may deduct from the net proceeds of the Offering payable to the Company on the Closing
Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriters, provided,
however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section
8.3 hereof.
3.11 Application
of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the
application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
3.12 Delivery
of Earnings Statements to Security Holders. The Company shall make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth (15th) full calendar month following the date of this Agreement, an
earnings statement (which need not be certified by independent registered public accounting firm unless required by the Securities
Act or the Securities Act Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Securities
Act) covering a period of at least twelve (12) consecutive months beginning after the date of this Agreement.
3.13 Stabilization.
Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Representatives)
has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected
to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
3.14 Internal
Controls. When required by the regulations of the Commission, the Company shall use its best efforts to maintain a system of
internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.15 Accountants.
As of the date of this Agreement, the Company shall retain an independent registered public accounting firm reasonably acceptable
to the Representatives, and the Company shall continue to retain a nationally recognized independent registered public accounting
firm for a period of at least three (3) years after the date of this Agreement. The Representatives acknowledge that the Auditor
is acceptable to the Representatives.
3.16 FINRA.
The Company shall advise the Representatives (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i)
any officer or director of the Company, (ii) any beneficial owner of 5% or more of any class of the Company's securities or (iii)
any beneficial owner of the Company's unregistered equity securities which were acquired during the 180 days immediately preceding
the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in the
Offering (as determined in accordance with the rules and regulations of FINRA).
3.17 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely
contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in
a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering
and the other transactions contemplated by this Agreement.
3.18 Company
Lock-Up Agreements.
3.18.1. Restriction
on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without the prior written
consent of the Representatives, it will not, for a period of 180 days after the date of this Agreement (the “Lock-Up
Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering of
any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company; or (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii)
or (iii) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise.
The restrictions contained
in this Section 3.18.1 shall not apply to (i) the shares of Common Stock to be sold hereunder, the Representative’s Warrant
and the shares of Common Stock issuable upon exercise thereof, (ii) the issuance by the Company of shares of Common Stock upon
the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof, hereafter issued pursuant
to the Company’s currently existing or hereafter adopted equity compensation plans or employment/consulting agreements or
arrangements of which the Representatives has been advised in writing or which have been filed with the Commission or (iii) the
issuance by the Company of stock options or shares of capital stock of the Company under any currently existing or hereafter adopted
equity compensation plan or employment/consulting agreements or arrangements of the Company.
Notwithstanding the foregoing,
but only to the extent that the rules of the Financial Industry Regulatory Authority relating to the following extensions (or any
successor rules) are applicable to the Company and in effect, and only if the Company loses its status as an “emerging growth
company,” if (i) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or
a material event relating to the Company occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning
on the last day of the Lock-Up Period, the restrictions imposed by this Section 3.18.1 shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of such material news or material event,
as applicable, unless the Representatives waive, in writing, such extension; provided, however, that this extension of the Lock-Up
Period shall not apply to the extent that the Company meets the applicable requirements under Rule 139 of the Securities Act and
the Company’s Securities are actively traded as defined in Regulation M of the Exchange Act.
3.19 Release
of D&O Lock-up Period. If the Representatives, in their sole discretion, agree to release or waive the restrictions set
forth in the Lock-Up Agreements described in Section 2.25 hereof for an officer or director of the Company and provides the Company
with notice of the impending release or waiver at least three (3) Business Days before the effective date of the release or waiver,
the Company agrees to announce the impending release or waiver by a press release in form and substance reasonably satisfactory
to the Representatives through a major news service at least two (2) Business Days before the effective date of the release or
waiver.
3.20 Blue
Sky Qualifications. The Company shall use its best efforts, in cooperation with the Underwriters, if necessary, to qualify
the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Representatives may designate and to maintain such qualifications in effect so long as required to complete the distribution
of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.21 Reporting
Requirements. The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with the
Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally,
the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the Securities
Act Regulations.
3.22 Emerging
Growth Company Status. The Company shall promptly notify the Representatives if the Company ceases to be an Emerging Growth
Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Securities
Act and (ii) fifteen (15) days following the completion of the Lock-Up Period.
4. Conditions
of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities, as provided
herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof
and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the
following conditions:
4.1 Regulatory
Matters.
4.1.1. Effectiveness
of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than 5:00 p.m.,
Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at each
of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or,
to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the
Commission for additional information. The Prospectus containing the Rule 430A Information shall have been filed with the Commission
in the manner and within the time frame required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment
providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements
of Rule 430A.
4.1.2. FINRA
Clearance. On or before the date of this Agreement, the Representatives shall have received clearance from FINRA as to the
amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3. Exchange
Stock Market Clearance. On the Closing Date, the Company’s shares of Common Stock, including the Firm Shares, shall
have been approved for listing on the Exchange, subject only to official notice of issuance. On the first Option Closing Date (if
any), the Company’s shares of Common Stock, including the Option Shares, shall have been approved for listing on the Exchange,
subject only to official notice of issuance.
4.2 Company
Counsel Matters.
4.2.1. Closing
Date Opinion of Counsel. On the Closing Date, the Representatives shall have received an opinion of Xxxxxxxx Xxxx LLP, counsel
to the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the
Representatives.
4.2.2. Opinion
of Special Intellectual Property Counsel for the Company. On the Closing Date, the Representatives shall have received an opinion
of DTWard, PC, special intellectual property counsel for the Company, dated the Closing Date, addressed to the Representatives,
in form and substance reasonably satisfactory to the Representatives.
4.2.3. Option
Closing Date Opinions of Counsel. On the Option Closing Date, if any, the Representatives shall have received the opinions
of each counsel listed in Sections 4.2.1 and 4.2.2, dated the Option Closing Date, addressed to the Representatives and in form
and substance reasonably satisfactory to the Representatives, confirming as of the Option Closing Date, the statements made by
such counsels in their respective opinions delivered on the Closing Date.
4.2.4. Reliance.
In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws
of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified
in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representatives)
of other counsel reasonably acceptable to the Representatives, familiar with the applicable laws; and (ii) as to matters of
fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments
of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided
that copies of any such statements or certificates shall be delivered to Representative Counsel if requested. The opinion of Xxxxxxxx
Xxxx LLP and any opinion relied upon by Xxxxxxxx Xxxx LLP shall include a statement to the effect that it may be relied upon by
Representative Counsel in its opinion delivered to the Underwriters.
4.3 Comfort
Letters.
4.3.1. Cold
Comfort Letter. At the time this Agreement is executed you shall have received a cold comfort letter containing statements
and information of the type customarily included in accountants’ comfort letters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed
to the Representatives and in form and substance reasonably satisfactory in all respects to you and to the Auditor, dated
as of the date of this Agreement.
4.3.2. Bring-down
Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received from
the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms
the statements made in the letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date
not more than three (3) business days prior to the Closing Date or the Option Closing Date, as applicable.
4.4 Officers’
Certificates.
4.4.1. Officers’
Certificate. The Company shall have furnished to the Representatives a certificate, dated the Closing Date and any Option Closing
Date (if such date is other than the Closing Date), of its Executive Chairman of the Board, its Chief Executive Officer, its President
and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Pricing
Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and
each amendment thereto, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other
than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, and the Pricing Disclosure Package, as of the
Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer
Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing
Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did
not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not misleading, (ii) since the Effective Date, no event has
occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package
or the Prospectus, (iii) to their knowledge after reasonable investigation, as of the Closing Date (or any Option Closing Date
if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and
correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there
has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the
Pricing Disclosure Package, any Material Adverse Change, or any change or development that, singularly or in the aggregate, would
involve a Material Adverse Change or a prospective Material Adverse Change, except as set forth in the Prospectus.
4.4.2. Secretary’s
Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representatives shall have received a certificate
of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Date, as the case may be, respectively,
certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full
force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full
force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company
or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to
in items (i) and (ii) of such certificate shall be attached to such certificate.
4.5 No
Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have
been no Material Adverse Change or development involving a prospective Material Adverse Change, of the Company from the latest
dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(ii) no action, suit or proceeding, at law or in equity, shall have been pending or, to the Company’s knowledge, threatened
against the Company or any Insider before or by any court or federal or state commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(iii) based solely on the call with the Commission on each of the Closing Date and the Option Closing Date, no stop order
shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission;
and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto
shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities
Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations,
and neither the Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto
shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading.
4.6 Delivery
of Agreements.
4.6.1. Lock-Up
Agreements. On or before the date of this Agreement, the Company shall have delivered to the Representatives executed copies
of the Lock-Up Agreements from each of the persons listed in Schedule 3 hereto.
4.6.2. Representative’s
Warrant Agreement. On the Closing Date, the Company shall have delivered to the Representatives executed copies of the Representative’s
Warrant Agreement.
4.7 Closing
Date Opinion of Counsel. On the Closing Date, the Representatives shall have received an opinion of Xxxxxxx Procter LLP, counsel
to the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the
Representatives.
4.8 Additional
Documents. At the Closing Date and at each Option Closing Date (if any) Representative Counsel shall have been furnished with
such documents and opinions as they may require for the purpose of enabling Representative Counsel to deliver an opinion to the
Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities
and the Representative’s Securities as herein contemplated shall be reasonably satisfactory in form and substance to the
Representatives and Representative Counsel.
5. Indemnification.
5.1 Indemnification
of the Underwriters.
5.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each Underwriter, its affiliates and
each of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who
controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively
the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”), against
any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever,
whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter
Indemnified Parties and any third party, or otherwise) to which they or any of them may become subject under the Securities Act,
the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Pricing
Disclosure Package, the Preliminary Prospectus, the Prospectus, in any Issuer Free Writing Prospectus or in any Written Testing-the-Waters
Communication (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show”
or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application or other
document or written communication (in this Section 5, collectively called “application”) executed by the Company
or based upon written information furnished by the Company in any jurisdiction in order to qualify the Securities and Representative’s
Securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, the Exchange
or any other national securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
in each case, unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’ Information.
With respect to any untrue statement or omission or alleged untrue statement or omission made in the Pricing Disclosure Package,
the indemnity agreement contained in this Section 5.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to
the extent that any loss, liability, claim, damage or expense of such Underwriter Indemnified Party results from the fact that
a copy of the Prospectus was not provide or sent to the person asserting any such loss, liability, claim or damage at or prior
to the written confirmation of sale of the Securities to such person as required by the Securities Act and the Securities Act Regulations,
and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was
a result of non-compliance by the Company with its obligations under Section 3.3 hereof.
5.1.2. Procedure.
If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company
pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of
such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the
reasonable approval of such Underwriter Indemnified Party) and payment of actual expenses. Such Underwriter Indemnified Party shall
have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized
in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel (or
counsel reasonably acceptable to such Underwriter Indemnified Party) to have charge of the defense of such action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different
from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more
than one additional firm of attorneys selected by the Underwriter Indemnified Party (in addition to local counsel) shall be borne
by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter Indemnified Party shall assume the
defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action,
which approval shall not be unreasonably withheld.
5.2 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure
Package or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict conformity
with, the Underwriters’ Information. In case any action shall be brought against the Company or any other person so indemnified
based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment
or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter
shall have the rights and duties provided to the Company, and the Company and each other person so indemnified shall have the rights
and duties provided to the several Underwriters by the provisions of Section 5.1.2. The Company agrees promptly to notify the Representatives
of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection
with the issuance and sale of the Securities or in connection with the Registration Statement, the Pricing Disclosure Package,
the Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
5.3 Contribution.
5.3.1. Contribution
Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, from the Offering of the Securities, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect
to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters,
on the other, with respect to such Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering
of the Securities purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the table
on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters
with respect to the shares of the Common Stock purchased under this Agreement, as set forth in the table on the cover page of the
Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant
to this Section 5.3.1 were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 5.3.1 in no event shall an Underwriter be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such Underwriter with respect to the Offering of the Securities
exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5.3.2. Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another
party (“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify
the contributing party will not relieve it from any liability which it may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party
or its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be
liable to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party
seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution
without the written consent of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended
to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available. Each Underwriter’s obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. Default
by an Underwriter.
6.1 Default
Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters shall default in its or their obligations
to purchase the Firm Shares or the Option Shares, if the Over-allotment Option is exercised hereunder, and if the number of the
Firm Shares or Option Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm
Shares or Option Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares or Option Shares to which
the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default
Exceeding 10% of Firm Shares or Option Shares. In the event that the default addressed in Section 6.1 relates to more than
10% of the Firm Shares or Option Shares, you may in your discretion arrange for yourself or for another party or parties to purchase
such Firm Shares or Option Shares to which such default relates on the terms contained herein. If, within one (1) Business Day
after such default relating to more than 10% of the Firm Shares or Option Shares, you do not arrange for the purchase of such Firm
Shares or Option Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to procure
another party or parties reasonably satisfactory to you to purchase said Firm Shares or Option Shares on such terms. In the event
that neither you nor the Company arrange for the purchase of the Firm Shares or Option Shares to which a default relates as provided
in this Section 6, this Agreement will automatically be terminated by you or the Company without liability on the part of the Company
(except as provided in Sections 3.10 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided,
however, that if such default occurs with respect to the Option Shares, this Agreement will not terminate as to the Firm Shares;
and provided, further, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters
and to the Company for damages occasioned by its default hereunder.
6.3 Postponement
of Closing Date. In the event that the Firm Shares or Option Shares to which the default relates are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the
right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business
Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package
or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration
Statement, the Pricing Disclosure Package or the Prospectus that in the opinion of Representative Counsel may thereby be made necessary.
The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with
like effect as if it had originally been a party to this Agreement with respect to such shares of Common Stock.
7. Additional
Covenants.
7.1 Board
Composition and Board Designations. Upon the consummation of the Offering, the Company shall ensure that: (i) the qualifications
of the persons serving as members of the Board of Directors and the overall composition of the Board comply with the Xxxxxxxx-Xxxxx
Act, with the Exchange Act and with the listing rules of the Exchange or any other national securities exchange, as the case may
be, in the event the Company seeks to have its Securities listed on another exchange or quoted on an automated quotation system,
and (ii) if applicable, at least one member of the Audit Committee of the Board of Directors qualifies as an “audit
committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2 Prohibition
on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without
the Representatives’ prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st)
Business Day following the forty-fifth (45th) day after the Closing Date, other than normal and customary releases issued
in the ordinary course of the Company’s business.
8. Effective
Date of this Agreement and Termination Thereof.
8.1 Effective
Date. This Agreement shall become effective when both the Company and the Representatives have executed the same and delivered
counterparts of such signatures to the other party.
8.2 Termination.
The Representatives shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic
or international event or act or occurrence has materially disrupted, or in its opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the NASDAQ
Stock Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government
authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major
hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority; or (v) if a
moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets;
or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage
or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representatives’
opinion, make it inadvisable to proceed with the delivery of the Firm Shares or Option Shares; or (vii) if the Company is
in material breach of any of its representations, warranties or covenants hereunder; or (viii) if the Representatives shall
have become aware after the date hereof of such a Material Adverse Change, or such material adverse change in general market conditions
as in the Representatives’ judgment would make it impracticable to proceed with the offering, sale and/or delivery of the
Securities or to enforce contracts made by the Underwriters for the sale of the Securities.
8.3 Expenses.
Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters pursuant
to Section 6.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified
herein or any extensions thereof pursuant to the terms herein, the Company shall, subject to the limitations contained in Section
3.10.1 above, be obligated to pay to the Underwriters their actual and accountable out-of-pocket expenses related to the transactions
contemplated herein then due and payable (including one-half of the fees and disbursements of Representative Counsel, subject to
a maximum reimbursement of $30,000), and upon demand the Company shall pay the full amount thereof to the Representatives on behalf
of the Underwriters; provided, however, that such expense cap in no way limits or impairs the indemnification and contribution
provisions of this Agreement.
8.4 Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement,
and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force and effect and
shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part
hereof.
8.5 Representations,
Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter,
its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Securities.
9. Miscellaneous.
9.1 Notices.
All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered
or certified mail, return receipt requested), personally delivered or sent by facsimile transmission and confirmed and shall be
deemed provided when so delivered or faxed and confirmed or if mailed, two (2) days after such mailing.
If to the Representatives:
Brean Capital, LLP
1535 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
Fax No.: [●]
Summer Street Research Partners
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
Xxxxxx Associates, L.P.
00 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
If to the Company:
MicroLin Bio, Inc.
000 X. 00xx Xx., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Chief Executive Officer
Fax No.: [_____]
with a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
9.2 Headings.
The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
9.3 Amendment.
This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4 Entire
Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with
this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.5 Binding
Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representatives, the Underwriters,
the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors,
legal representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors
and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
9.6 Governing
Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced
in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to
such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon
the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal
and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating
to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
9.7 Execution
in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission
shall constitute valid and sufficient delivery thereof.
9.8 Waiver,
etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof
or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance
or non-fulfillment.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Confirmed as of the date first written above mentioned, on behalf of itself and as Representatives of the several Underwriters named on Schedule 1 hereto: |
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BREAN CAPITAL, LLC |
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Title: |
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SUMMER STREET RESEARCH PARTNERS |
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Title: |
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XXXXXX ASSOCIATES, L.P. |
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[Signature
Page]
Microlin
– Underwriting Agreement
SCHEDULE 1
Underwriter | |
Total Number of Firm Shares/Warrants to be Purchased | | |
Number of Option Shares/Warrants to be Purchased if the Over-
Allotment Option is Fully Exercised | |
| |
| | |
| |
Brean Capital, LLC | |
| | | |
| | |
| |
| | | |
| | |
Summer Street Research Partners | |
| | | |
| | |
| |
| | | |
| | |
Xxxxxx Associates, L.P. | |
| | | |
| | |
| |
| | | |
| | |
[●] | |
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TOTAL | |
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SCHEDULE 2-A
Pricing Information
Number of Firm Shares: [•]
Number of Firm Warrants: [•]
Number of Option Shares: [•]
Number of Option Warrants: [•]
Public Offering Price per Share: $[•]
Public Offering Price per Warrant: $[•]
Underwriting Discount per Share: $[•]
Underwriting Discount per Warrant: $[•]
Proceeds to Company per Share (before expenses): $[•]
SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
[INSERT]
SCHEDULE 2-C
Written Testing-the-Waters Communications
[INSERT]
SCHEDULE 3
List of Lock-Up Parties