Exhibit 1.1
5,882,353 SHARES of
Common Stock
HEARTBEAM, INC.
UNDERWRITING AGREEMENT
February 12, 2025
Public Ventures, LLC (d/b/a MDB Capital)
14135 Midway Road, Suite G-150
Addison, TX 75001
Ladies and Gentlemen:
The undersigned, HeartBeam,
Inc., a company incorporated under the laws of Delaware (the “Company”), hereby confirms its agreement (this “Agreement”)
with Public Ventures, LLC d/b/a MDB Capital, as the underwriter (including others acting as an underwriter, then together, the “Underwriters”
and each, an “Underwriter” that are named in Schedule I hereto and in which case Public Ventures, LLC is acting
as representative and therefore referred to herein as the “Representative,” and if there are no Underwriters other
than the Representative, references to multiple Underwriters shall be disregarded and the term Representative as used herein shall have
the same meaning as the Underwriter) on the terms and conditions set forth herein.
It is understood that the
Underwriters are to make a public offering of the Public Securities (as defined below) as soon as the Representative deems it advisable
to do so. The Public Securities are to be initially offered to the public at the public offering prices set forth in the Prospectus Supplement
(as defined below).
It is further understood that
you will act as the Representative for the Underwriters in the Offering (as defined below) and sale of the Closing Securities (as defined
below) and, if any, the Option Securities (as defined below) in accordance with this Agreement.
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with such Person as such terms are used in and construed under Rule 405 promulgated by the Commission pursuant
to the Securities Act.
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“CERCLA”
shall have the meaning ascribed to such term in Section 3.1(oo).
“Closing”
means the closing of the purchase and sale of the Closing Securities pursuant to Section 2.1.
“Closing
Date” means the hour and the date on the Trading Day on which all conditions precedent to (i) the Underwriters’ obligations
to pay the Closing Purchase Price and (ii) the Company’s obligations to deliver the Closing Securities, in each case, have been
satisfied or waived, but in no event later than 10:00 a.m. (New York City time) on the second (2nd) Trading Day following the
date hereof or at such earlier time as shall be agreed upon by the Representative and the Company.
“Closing
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b), which aggregate purchase price shall be net
of the underwriting discounts and commissions.
“Closing
Securities” shall have the meaning ascribed to such term in Section 2.1(a).
“Closing
Shares” shall have the meaning ascribed to such term in Section 2.1(a).
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company
Auditor” means Marcum LLP, with offices located at 730 Third Avenue, New York, NY 10017.
“Company
Counsel” means Lucosky Brookman LLP, with offices 101 Wood Avenue South 5th Floor, Woodbridge, NJ 08830.
“Controlling
Person” shall have the meaning ascribed to such term in Section 6.1.
“Effective
Date” shall have the meaning ascribed to such term in Section 3.1(f).
“Engagement
Agreement” shall have the meaning ascribed to such term in Section 7.2.
“Environmental
Law” shall have the meaning ascribed to such term in Section 3.1(oo).
“ERISA”
shall have the meaning ascribed to such term in Section 3.1(z).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Execution
Date” shall mean the date on which the parties execute and enter into this Agreement.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock, equity awards or other securities of the Company under any equity
compensation plan or stock or option plan of the Company or pursuant to another type of arrangement for services rendered or to be rendered
to the Company, duly adopted for such purpose by a majority of the Board of Directors (including, in the case of plans or arrangements
relating to employee compensation, the consent of the majority of the non-employee members of the Board of Directors) or a majority of
the members (who are the non-employee members) of a committee established for such purpose for services rendered or to be rendered to
the Company; provided further that, subject to shareholder approval, the Company may increase the authorized shares of the 2022 Equity
Incentive Plan, (b) securities upon the exercise or exchange of or conversion of or vesting of any securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange
price or conversion price of such securities or to extend the term of such securities, and (c) securities issued pursuant to acquisitions
or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued
as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of
any registration statement in connection therewith within 120 days following the Closing Date, and provided that any such issuance shall
only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner
of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition
to the investment of funds, but, unless approved by the Representative, which approval shall not be unreasonably withheld, conditioned
or delayed, shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or
to an entity whose primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(e).
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(hh).
“FINRA”
means the Financial Industry Regulatory Authority.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(i).
“General
Disclosure Package” means each Permitted Free Writing Prospectus, the Prospectus, any Preliminary Prospectus and all written
communications, as defined in Rule 405, on, or hyperlinked from, www.ir.heartbeam.com.
“Golenbock”
means Golenbock Eiseman Assor Bell & Peskoe LLP, with offices located at 711 Third Avenue, New York, New York 10017.
“Indebtedness”
means (a) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the
ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c)
the present value of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance with GAAP.
“Intellectual
Property” shall have the meaning ascribed to such term in Section 3.1(o).
“Iran Sanctions”
shall have the meaning ascribed to such term in Section 3.1(pp).
“IT Systems
and Data” shall have the meaning ascribed to such term in Section 3.1(nn).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” means the lock-up agreements that are delivered on the date hereof (i) by each of the Company’s officers and
directors and each of the Company’s shareholders actually and beneficially holding 5% or more shares of Common Stock, in the form
of Exhibit A attached hereto.
“Material
Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document.
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3.1(ii).
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(ff).
“Offering”
shall have the meaning ascribed to such term in Section 2.1(c).
“Option
Closing Date” shall have the meaning ascribed to such term in Section 2.2(c).
“Option
Closing Purchase Price” shall have the meaning ascribed to such term in Section 2.2(b), which aggregate purchase price shall
be net of the underwriting discounts and commissions.
“Option
Securities” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Shares” shall have the meaning ascribed to such term in Section 2.2(a).
“Over-Allotment
Option” shall have the meaning ascribed to such term in Section 2.2(a).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4.2(d).
“Permit”
shall have the meaning ascribed to such term in Section 3.1(e).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preliminary
Prospectus” means any preliminary prospectus supplement relating to the Public Securities included in the Registration Statement
or filed with the Commission pursuant to Rule 424(b) promulgated by the Commission pursuant to the Securities Act.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final base prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the final supplement to the Prospectus complying with Rule 424(b) promulgated by the Commission pursuant to
the Securities Act that is filed with the Commission relating to the Offering.
“Public
Securities” means, collectively, the Closing Securities and, if any, the Option Securities.
“Registration
Statement” means, collectively, the various parts of the registration statement prepared by the Company on Form S-3 (File No.
269520) with respect to the Public Securities, each as amended as of the date hereof, including the Prospectus, the Preliminary Prospectus,
the Prospectus Supplement and all exhibits filed with or incorporated by reference into such registration statement, and includes any
Rule 462(b) Registration Statement.
“Rule 405”
shall have the meaning ascribed to such term in Section 3.1(k).
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b)
Registration Statement” means any registration statement prepared by the Company registering additional Public Securities, which
was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by
the Commission pursuant to the Securities Act.
“Sarbanes-Oxley
Act” shall have the meaning ascribed to such term in Section 3.1(r).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(i).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Selected
Dealer” shall have the meaning ascribed to such term in Section 6.1.
“Share
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Subsidiary”
means any significant subsidiary of the Company as defined in Article 1, Rule 1-02 of Regulation S-X promulgated by the Commission pursuant
to the Securities Act.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or NYSE
American (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreements, the Warrant Agency Agreement, the Underwriter Warrant, and any other
documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means VStock Transfer, LLC, 18 Lafayette Place, Woodmere, New York 11598, and any successor transfer agent of the Company.
“Underwriter
Information” shall have the meaning ascribed to such term in Section 3.1(w).
“Underwriter
Warrant” means that certain Underwriter Warrant, dated as of the Closing Date and the Option Closing Date, if any, issued by
the Company to the Representative, in the form of Exhibit B attached hereto.
“Warrant
Agency Agreement” means that certain Warrant Agency Agreement, dated on or about the date hereof, by and between the Company
and VStock Transfer, LLC.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
(a) Upon
the terms and subject to the conditions set forth herein, the Company agrees to sell in the aggregate 5,882,353 shares of Common Stock,
and each Underwriter agrees to purchase, severally and not jointly, at the Closing, the number of shares of Common Stock (the “Closing
Shares”) set forth opposite the name of such Underwriter on Schedule I hereof (the Closing Shares are sometimes referred
to herein as the “Closing Securities”);
(b) The
aggregate purchase price for the Closing Securities shall equal the amount set forth opposite the name of such Underwriter on Schedule
I hereto (the “Closing Purchase Price”). The purchase price to the Underwriters for one share of Common Stock shall
be $1.54275 per share (the “Share Purchase Price”); and
(c) On
the Closing Date, each Underwriter shall deliver or cause to be delivered to the Company, via wire transfer, immediately available funds
equal to such Underwriter’s Closing Purchase Price and the Company shall deliver to, or as directed by, such Underwriter its respective
Closing Securities and the Company shall deliver the other items required pursuant to Section 2.3 deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at the offices of counsel to the Underwriters
or such other location as the Company and Representative shall mutually agree. The Public Securities are to be offered initially to the
public at the public offering price set forth on the cover page of the Prospectus Supplement (the “Offering”).
2.2 Over-Allotment
Option.
(a) For
the purposes of covering any over-allotments in connection with the distribution and sale of the Closing Shares, the Representative is
hereby granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to 882,353 shares of Common
Stock (the “Option Shares”) at the Share Purchase Price; provided that this option may be exercised by the Representative
as to any number of Option Shares, as determined by the Representative, as offered by the Company to the public in the Offering.
(b) In
connection with an exercise of the Over-Allotment Option, the purchase price to be paid for the Option Securities is equal to the product
of the Share Purchase Price multiplied by the number of Option Shares to be purchased (the aggregate purchase price to be paid on an Option
Closing Date, the “Option Closing Purchase Price”).
(c) The
Over-Allotment Option granted pursuant to this Section 2.2 may be exercised by the Representative as to all (at any time) or a lesser
amount (from time to time) of the Option Securities within forty-five (45) days after the Execution Date. An Underwriter will not be under
any obligation to purchase any Option Securities prior to the exercise of the Over-Allotment Option by the Representative. The Over-Allotment
Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in
writing by overnight mail or other electronic transmission setting forth the number of the Option Securities to be purchased and the date
and time for delivery of and payment for the Option Securities (each, an “Option Closing Date”), which will not be
later than two (2) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representative,
at the offices of Golenbock or at such other place (including remotely by other electronic transmission) as shall be agreed upon by the
Company and the Representative. If such delivery and payment for the Option Securities does not occur on the Closing Date, each Option
Closing Date will be as set forth in the notice. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey
to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the
number of Option Securities specified in such notice. The Representative may cancel the Over-Allotment Option at any time prior to the
expiration of the Over-Allotment option by written notice to the Company.
2.3 Deliveries.
The Company shall deliver or cause to be delivered to each Underwriter (if applicable) the following:
(i) At
the Closing Date, the Closing Securities and, as to each Option Closing Date, if any, the applicable Option Securities, which securities
shall be delivered via The Depository Trust Company facilities or through the transfer agent for the Company, for the accounts of the
several Underwriters;
(ii) At
the Closing Date, a legal opinion of Company Counsel addressed to the Underwriters, including, without limitation, a negative assurance
letter, in customary form reasonably acceptable to the Representative, and as to each Option Closing Date, if any, a bring-down opinion
and negative assurance letter from Company Counsel in form and substance reasonably satisfactory to the Representative;
(iii) Contemporaneously
herewith, a cold comfort letter addressed to the Underwriters and in form and substance satisfactory in all respects to the Representative
from the Company Auditor dated, respectively, as of the date of this Agreement and a bring-down letter dated as of the Closing Date and
each Option Closing Date, if any;
(iv) On
the Closing Date and on each Option Closing Date, the duly executed and delivered Officer’s Certificate, substantially in the form
required by Exhibit C attached hereto;
(v) On
the Closing Date and on each Option Closing Date, the duly executed and delivered Secretary’s Certificate, substantially in the
form required by Exhibit D attached hereto;
(vi) Contemporaneously
herewith, the duly executed and delivered Lock-Up Agreements; and
(vii) Contemporaneously
herewith, a copy of the FINRA no objection letter issued upon the filing of the Registration Statement with FINRA and payment of the FINRA
filing fee.
2.4 Closing
Conditions. The respective obligations of the Underwriters hereunder in connection with the Closing and each Option Closing Date are
subject to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date and the Option Closing Date, as the case may be, (other than representations
and warranties of the Company already qualified by materiality, which shall be true and correct in all respects) of the representations
and warranties of the Company contained herein (unless as of a specific date therein, in which case they shall be accurate in all material
respects as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the date in question shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.3 of this Agreement;
(iv) The
Registration Statement has become effective and at the Closing Date and each Option Closing Date, if any, no stop order suspending the
effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened
by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Underwriter. A prospectus
supplement containing Rule 430B Information shall have been filed with the Commission in the manner and within the period required by
Rule 424(b) promulgated by the Commission pursuant to the Securities Act (without reliance on Rule 424(b)(8)) or a post-effective amendment
providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430B promulgated
by the Commission pursuant to the Securities Act. Any material required to be filed by the Company pursuant to Rule 433(d) promulgated
by the Commission pursuant to the Securities Act shall have been timely filed with the Commission in accordance with such rule.
(v) by
the Execution Date, if required by FINRA, the Underwriters shall have received clearance from FINRA as to the amount of compensation allowable
or payable to the Underwriters as described in the Registration Statement;
(vi) the
Company shall have submitted a Notification: Listing of Additional Shares with Nasdaq with respect to the Closing Shares and the Option
Shares to be sold at the Closing Date and shall have received no objection thereto from the Nasdaq Capital Market; and
(vii) prior
to and on each of the Closing Date and each Option Closing Date, if any: (A) there shall have been no material adverse change or
development involving a prospective material adverse change in the condition or prospects or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition, prospect or business activity is set forth in the Registration Statement,
the General Disclosure Package or the Prospectus Supplement; (B) no action, suit or proceeding, at law or in equity, shall have been
pending or threatened against the Company or any Affiliate of the Company 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 General Disclosure Package
or the Prospectus Supplement; (C) 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 (D) the Registration Statement 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 rules and regulations thereunder and shall conform in all material respects to the requirements of the Securities Act and the
rules and regulations thereunder, and neither the Registration Statement 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.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Execution Date, as of the Closing
Date and as of each Option Closing Date, if any, as follows:
(a) Subsidiaries.
Each Subsidiary of the Company has been duly organized and is validly existing in good standing under the laws of the jurisdiction of
its incorporation or organization, has corporate or similar power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the General Disclosure Package or the Prospectus Supplement and is duly qualified
to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect. Except
as otherwise disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, all of the issued and
outstanding capital stock or equity interests of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through Subsidiaries, free and clear of any material security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of capital stock or equity interests of any Subsidiary was issued in violation
of any preemptive or similar rights of any securityholder of such Subsidiary.
(b) Organization;
Qualification; Authorization. The Company has been duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to own, lease, and operate its properties and to conduct its business
as described in the Registration Statement, the General Disclosure Package or the Prospectus Supplement and to enter into and perform
its obligations under this Agreement, the other Transaction Documents, and the various other agreements required hereunder and thereunder
to which it is a party; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so qualify individually or in the aggregate would not have a Material Adverse
Effect. All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance
of each of this Agreement and the other Transaction Documents and the issuance and sale of the Common Stock. Each of this Agreement and
the other Transaction Documents have been duly authorized, executed and delivered by the Company.
(c) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its certificate or articles of incorporation,
by-laws, certificate of limited partnership, agreement of limited partnership, certificate of formation, operating agreement or other
organizational documents, (ii) in default under, and no event has occurred which, with notice or lapse of time, or both, would constitute
a default under any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument evidencing
an obligation for borrowed money or any other material agreement or instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject, or (iii) in violation of any statute, law, rule, regulation, ordinance, directive, judgment,
decree or order of any judicial, regulatory or other legal or governmental agency or body, foreign or domestic, except (in the case of
clause (ii) or (iii) above) for violations or defaults that would not (individually or in the aggregate) reasonably be expected to have
a Material Adverse Effect.
(d) No
Conflicts. Neither the execution, delivery and performance of this Agreement or the other Transaction Documents by the Company nor
the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of
the Public Securities) will: (i) give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would
constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust
or other agreement or instrument evidencing an obligation for borrowed money or any other material agreement or instrument to which either
of the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their properties or
businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to either of the
Company or any of its Subsidiaries, or (ii) violate any provision of certificate or articles of incorporation, by-laws, certificate of
limited partnership, agreement of limited partnership, certificate of formation, operating agreement or other organizational documents
of either of the Company or any of its Subsidiaries, except (A) in the case of clause (i) above, for violations or defaults that would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (B) for such consents or waivers
which have already been obtained and are in full force and effect.
(e) Consents,
Permits and Filings. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement,
the Company and its Subsidiaries have made all filings, applications and submissions required by, possesses and is operating in compliance
with, all approvals, licenses, certificates, certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits
and other authorizations issued by, the appropriate local, federal, state or foreign governmental authority (including, without limitation,
the United States Food and Drug Administration (the “FDA”), the United States Drug Enforcement Administration or any
other foreign, federal, state, provincial, court or local government or regulatory authorities including self- regulatory organizations
engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership
or lease of their respective properties or to conduct its businesses as described in the Registration Statement, the General Disclosure
Package or the Prospectus Supplement (collectively, “Permits”), except for such Permits the failure of which to possess,
obtain or make the same would not have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Permits, except where the failure to be in compliance would not have a Material Adverse Effect; all of the Permits
are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably expected
to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice relating to the
limitation, revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, or has any reason to believe that any
such license, certificate, permit or authorization will not be renewed in the ordinary course. To the extent required by applicable laws
and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational New Drug Application
or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring; all such submissions
were in material compliance with applicable laws and rules and regulations when submitted and no material deficiencies have been asserted
by the FDA with respect to any such submissions.
The Company is not
required to obtain any Permit, give any notice to, or make any filing or registration with, any court or other federal, state, local or
other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction
Documents, other than: (i) the filing with the Commission of the Prospectus Supplement and (ii) such filings as are required to be made
under applicable state securities laws, the rules and regulations of FINRA and the Nasdaq Capital Market.
(f) Registration
Statement. The Company has filed with the Commission a “shelf” registration statement on Form S-3 under the Securities
Act, which became effective on February 2, 2023 (the “Effective Date”), for the registration under the Securities Act
of the Public Securities. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. The Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule and the Prospectus
Supplement will meet the requirements set forth in Rule 424(b) promulgated by the Commission pursuant to the Securities Act. The Company
is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value
of securities being sold pursuant to this Offering and during the twelve (12) months prior to the Offering, as set forth in General Instruction
I.B.6 of Form S-3. Any reference in this Agreement to the Registration Statement, the Prospectus or the Prospectus Supplement shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act, on or before the date of this Agreement, or the issue date of the Prospectus or the Prospectus Supplement, as the case
may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing
of any document under the Exchange Act after the date of this Agreement, or the issue date of the Prospectus or the Prospectus Supplement,
as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included,” “described,” “referenced,” “set
forth” or “stated” in the Registration Statement, the Prospectus or the Prospectus Supplement (and all other references
of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, the Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of the Prospectus or the Prospectus Supplement has been issued,
and no proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge, is threatened by the Commission.
(g) Issuance
of Securities. The Public Securities have been duly authorized for issuance and sale to the Underwriters or its nominees pursuant
to this Agreement, and when the Public Securities have been issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, the Public Shares will be validly issued, fully paid and non-assessable; and the issuance of the
Public Securities is not subject to any preemptive or other similar rights of any securityholder of the Company. The Common Stock conform
in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package or
the Prospectus Supplement and such description conforms in all material respects to the rights set forth in the instruments defining the
same; and no holder of the Public Securities will be subject to personal liability by reason of being such a holder. The Underwriter Warrants
have been duly authorized for issuance and sale to the Underwriters or its nominees and the Common Stock underlying the Underwriter Warrants,
when issued in accordance with the terms of the Underwriter Warrants, will be validly issued, fully paid and non-assessable, and the issuance
of the Underwriter Warrants is not be subject to any preemptive or similar rights of any securityholder of the Company.
(h) Capitalization.
The capitalization of the Company is as set forth in the Registration Statement, the General Disclosure Package or the Prospectus Supplement.
Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of stock options
under the Company’s equity incentive plans or stock or option plans, the issuance of shares of Common Stock pursuant to the Company’s
employee stock purchase plans or other stock plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding
as of the date of the most recently filed periodic report under the Exchange Act. Except as disclosed in the Registration Statement, the
General Disclosure Package or the Prospectus Supplement, no Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as disclosed in the Registration
Statement, the General Disclosure Package or the Prospectus Supplement, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, Common Stock Equivalents,
or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary
is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or the capital stock of any Subsidiary.
The issuance and sale of the Public Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock, Common
Stock Equivalents or other securities to any Person (other than the Underwriters). Except as disclosed in or contemplated by the Registration
Statement or the General Disclosure Package or the Prospectus Supplement, there are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary. Except as disclosed in or contemplated by the Registration Statement, the
General Disclosure Package or the Prospectus Supplement, there are no outstanding securities or instruments of the Company or any Subsidiary
that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Except as disclosed in the Registration
Statement, the General Disclosure Package or the Prospectus Supplement, the Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
The authorized shares of the Company conform in all material respects to all statements relating thereto contained in the Registration
Statement and the Prospectus. The offers and sales of the Company’s securities 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, exempt from such registration requirements. No further approval or authorization of any stockholder, the Board of Directors
or others is required for the issuance and sale of the Public Securities, other than the Commission or FINRA. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(i) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve months preceding the
date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior
to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements
of the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the Registration Statement, the General
Disclosure Package or the Prospectus Supplement comply in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared
in accordance with generally accepted accounting principles (“GAAP”), applied on a consistent basis during the periods
involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described
in the Registration Statement, the General Disclosure Package or the Prospectus Supplement 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 rules and regulations
thereunder to be described in the Registration Statement, the General Disclosure Package or the Prospectus Supplement 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
specifically referred to in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, or (ii) is material
to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material
respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its
terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state
securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject
to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. None of the agreements
or instruments set forth in clause (i) of the previous sentence has been assigned by the Company, and neither the Company nor, to the
Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that,
with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the Company’s knowledge, performance
by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable
law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the
Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations, except
for such violations that would not, individually or in the aggregate, have a Material Adverse Effect.
(j) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof or the Registration Statement,
the General Disclosure Package or the Prospectus Supplement, (i) there has been no event, occurrence or development that has had or that
could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock, (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company equity compensation plans or other stock plans and (vi) no officer or director of the Company has resigned from any
position with the Company. The Company does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Public Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or
development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their
respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the
Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least one (1) Trading Day prior to the date that this representation is made. Unless otherwise disclosed in an SEC Report filed prior
to the date hereof, the Registration Statement, the Disclosure Package or the Prospectus Supplement, the Company has not: (x) issued
any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (y) declared or paid any dividend
or made any other distribution on or in respect to its capital stock.
(k) Rule
405. At (i) the Effective Date, (ii) the earliest time after the Effective Date that the Company or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2) promulgated by the Commission pursuant to the Securities Act) of the Public Securities
and (iii) the execution of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 promulgated
by the Commission pursuant to the Securities Act (“Rule 405”), without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(l) No
Litigation. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, there
is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any of its Subsidiaries is a party or to which any property, operations or assets of the Company or any
of its Subsidiaries is the subject. To the Company’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated;
and (i) there are no current or pending audits or investigations, actions, suits or proceedings by or before any foreign, federal
state or local governmental authority that are required under the Securities Act to be described in the Registration Statement, the General
Disclosure Package or the Prospectus Supplement that are not so described; and (ii) there are no contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement, the General Disclosure Package or the Prospectus
Supplement that are not so filed.
(m) Labor
Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute or, to the knowledge of the Company, is
any such dispute threatened, which dispute would reasonably be expected to result in a Material Adverse Effect. The Company is not aware
of any existing or imminent labor disturbance by the employees of any of its or its Subsidiaries, principal suppliers or contractors which
would reasonably be expected to result in a Material Adverse Effect. The Company is not aware of any threatened or pending litigation
between either of the Company or any of its Subsidiaries and any of its executive officers and has no reason to believe that such officers
will not remain in the employment of the Company or its Subsidiaries, as the case may be.
(n) Title
to Real and Personal Property. The Company and its Subsidiaries own or lease all such properties as are necessary and material to
the conduct of its business as presently operated as described in the Registration Statement, the General Disclosure Package or the Prospectus
Supplement. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company
and its Subsidiaries have good and marketable title in fee simple to all items of real property owned by them, good and valid title to
all personal property described in the Registration Statement or Prospectus as being owned by them, in each case free and clear of all
liens, encumbrances and claims, except those matters that (i) do not materially interfere with the use made and proposed to be made of
such property by the Company and any of its Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse
Effect. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, any real or personal
property described in the Registration Statement, the General Disclosure Package or the Prospectus Supplement as being leased by the Company
and any of its Subsidiaries is held by them under valid, existing and enforceable leases, with such exceptions as are not material to,
and do not interfere with, the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries. Each
of the properties of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent disclosed
in the Registration Statement, the General Disclosure Package and/or the Prospectus Supplement or except for such failures to comply that
would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its
Subsidiaries has received from any foreign, federal, state or local governmental authorities any (x) notice of any condemnation of, or
zoning change affecting, the properties of the Company and its Subsidiaries or (y) notice of any claim adverse to its ownership of any
real or personal property or of any claim against the continued possession of any real property, whether owned or held under lease or
sublease by the Company or its Subsidiaries, and the Company knows of no such condemnation or zoning change or adverse claim which is
threatened, except for such that would not reasonably be expected to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate.
(o) Intellectual
Property. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company
and each of its Subsidiaries owns or possesses, and will continue to own or possess immediately following the Closing, legally enforceable
rights to use all foreign and domestic patents, patent applications, trade and service marks, trade and service mark registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and other intellectual property (collectively,
the “Intellectual Property”) necessary for the conduct of their respective businesses as now conducted except to the
extent that the failure to own, possess, license or otherwise hold adequate rights to use such Intellectual Property would not, individually
or in the aggregate, have a Material Adverse Effect.
Except as disclosed
in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, (i) there are no rights of third parties to
any such Intellectual Property owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there is no infringement
by third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual
Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) 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; (v) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright,
trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published
U.S. patent application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the Prospectus as being owned by or licensed to the Company; and (vii) the Company
and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company
or such Subsidiary, and all such agreements are in full force and effect, except, in the case of any of clauses (i)-(vii) above, for any
such infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually or in
the aggregate, result in a Material Adverse Effect.
(p) Insurance.
The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in
such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business,
and all such insurance is in full force and effect. The Company does not have any reason to believe that it or any of its Subsidiaries
will not be able (A) to renew, if desired, its existing insurance coverage as and when such policies expire or (B) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and not at a cost that
is materially more significant. Since January 1, 2022, The Company has not been denied any insurance coverage that it has sought or for
which it has applied.
(q) Transactions
With Affiliates and Employees. No transaction has occurred between or among either of the Company, its Subsidiaries and any of their
officers or directors, or five percent stockholders or any affiliate or affiliates of any such officer or director or five percent stockholders
that is required to be described in and is not described in the Registration Statement, the General Disclosure Package or the Prospectus
Supplement.
(r) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations
promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”) that are then in effect and
with which the Company is required to comply. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has
made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements
and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley
Act. The Company has not, directly or indirectly, including through any Subsidiary, extended credit, arranged to extend credit, or renewed
any extension of credit, in the form of a personal loan, to or for any executive officer of the Company or any of its Subsidiaries, or
to or for any family member or affiliate of any director or executive officer of the Company or any of its Subsidiaries
(s) Disclosure
Controls. The books, records and accounts of the Company and its Subsidiaries accurately and fairly reflect, in all material respects,
the transactions in, and dispositions of, the assets of, and the results of operations of, the Company and its Subsidiaries. Except as
disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company and such Subsidiaries
maintain systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company is not aware of (x) 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, except as disclosed in the Registration Statement,
the General Disclosure Package or the Prospectus Supplement; or (y) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls.
(t) Certain
Fees. There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting
or origination fee with respect to the introduction of the Company to the Underwriters or the sale of the Public Securities hereunder
or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriters’
compensation, as determined by the FINRA.
(u) Investment
Company Act. The Company is not and, after giving effect to the Offering, the sale of the Public Securities and the application of
proceeds thereof as described in the General Disclosure Package or Prospectus Supplement, will not be required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(v) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken
no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under
the Exchange Act. The Company has not received any notification that the Commission is contemplating terminating such Exchange Act registration.
Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted
to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. Except as disclosed
in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company is, and has no reason to believe
that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements of such Trading
Market. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees of the Depository Trust Company (or such other established clearing corporation)
in connection with such electronic transfer.
(w) Disclosure;
10b-5. The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, if any, at the time it
became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable rules and regulations
under the Securities Act and did not and, as amended or supplemented, if applicable, will not, contain any 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. The Preliminary
Prospectus, Prospectus and the Prospectus Supplement, each as of its respective date, comply in all material respects with the Securities
Act and the Exchange Act and the applicable rules and regulations. Each of the Preliminary Prospectus, Prospectus and the Prospectus Supplement,
as amended or supplemented, did not and will not contain as of the date thereof any 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 that this representation and warranty shall not apply to statements made or statements omitted upon and in conformity with written
information furnished to the Company with respect to the applicable Underwriters by or on behalf of the Representative expressly for use
in the Registration Statement, Prospectus, Preliminary Prospectus or Prospectus Supplement, or any amendment or supplement thereto, with
the understanding that the Representative has provided only the statements in the Underwriting section of the Registration Statement,
the General Disclosure Package or Prospectus Supplement in the subheadings “Discretionary Accounts” and “Price Stabilization,
Short Positions and Penalty Bids” and the second sentence of “Electronic Offer, Sale and Distribution of Securities”
(the “Underwriter Information”). The SEC Reports, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable rules and regulations, and none of such documents, when they were
filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the
statements therein (with respect to the SEC Reports incorporated by reference in the Preliminary Prospectus, Prospectus or Prospectus
Supplement), in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Preliminary Prospectus, Prospectus or Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable, and
will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made not misleading. There are no documents required to be filed with the Commission
in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y)
will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Preliminary
Prospectus, Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not
been described or filed as required. The press releases disseminated by the Company during the twelve months preceding the date of this
Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made,
not misleading.
(x) No
Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this Offering of the Public Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated. Except as described
in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Company has not sold or issued any shares
of Common Stock during the six-month period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock options plans
or other employee compensation plans or other stock plans or pursuant to outstanding options, rights or warrants. Neither the Company
nor any of its affiliates (as such term is defined under Rule 144 of the Securities Act) has, prior to the date hereof, made any offer
or sales of any securities which are required to be “integrated” pursuant to the Securities Act or the Rules with the offer
and sale of the Public Securities pursuant to the Registration Statement.
(y) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Public Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the
amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business
as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of
the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the
current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws
of any jurisdiction within one year from the Closing Date. The Registration Statement, the General Disclosure Package or the Prospectus
Supplement sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for
which the Company or any Subsidiary has commitments. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness,
which would have, individually or in the aggregate, a Material Adverse Effect.
(z) ERISA.
The Company fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the U.S. Employee Retirement Income
Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to each “plan”
as defined in Section 3(3) of ERISA and such regulations and published interpretations in which its employees are eligible to participate
and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and
published interpretations. No “Reportable Event” (as defined in 12 ERISA) has occurred with respect to any “Pension
Plan” (as defined in ERISA) for which the Company could have any liability. The execution of the Transaction Documents and consummation
of the Offering does not constitute a triggering event under any plan or any other employment contract, whether or not legally enforceable,
which (either alone or upon the occurrence of any additional or subsequent event) will or may result in any payment (of severance pay
or otherwise), acceleration, increase in vesting, or increase in benefits to any current or former participant, employee or director of
the Company or any of its Subsidiaries.
(aa) Taxes.
The Company and its Subsidiaries have filed all material federal, state, local and foreign tax returns which are required to be filed
through the date hereof, which returns are true and correct in all material respects, or has received timely extensions thereof, and has
paid all taxes shown on such returns and all assessments received by the Company to the extent that the same are material and have become
due. There are no material tax audits or investigations pending; nor are there any material proposed additional tax assessments against
either the Company or its Subsidiaries. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty
or assessment which has been or might be asserted or threatened against it which would have a Material Adverse Effect.
(bb) Foreign
Corrupt Practices. Neither the Company nor any other person associated with it or acting on its behalf including, without limitation,
any director, officer, agent or employee of the Company or its Subsidiaries, has, directly or indirectly, while acting on behalf of the
Company or its Subsidiaries: (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA; or (iv) made any other unlawful
payment.
(cc) Accountants.
To the knowledge and belief of the Company, the Company Auditor (i) is an independent registered public accounting firm as required by
the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual
Report for the fiscal year ending December 31, 2024. The Company Auditor has not, during the periods covered by the financial statements
included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
(dd) Intentionally
omitted.
(ee) Intentionally
omitted.
(ff) OFAC.
Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering,
or lend, contribute or otherwise make available such proceeds to its Subsidiaries or any 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.
(gg) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Representative’s request.
(hh) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(ii) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(jj) D&O
Questionnaires. All information contained in the questionnaires completed by each of the Company’s officers and directors and
provided to the Underwriter as well as the biographies of such individuals in the Registration Statement is true and correct in all material
respects and the Company has not become aware of any information that would cause the information disclosed in the questionnaires completed
by the directors and officers to become inaccurate and incorrect in any material respect.
(kk) FINRA
Affiliation. To the knowledge of the Company, no: (i) officer or director of the Company or its Subsidiaries, (ii) owner of 5% or
more of the Company’s unregistered securities or (iii) owner of any amount of the Company’s unregistered securities acquired
within the 180-day period prior to the date of the Preliminary Prospectus has any direct or indirect affiliation or association with any
FINRA member. The Company will advise the Underwriter and its counsel if it becomes aware that any officer, director or stockholder of
the Company or its Subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in the Offering.
(ll) Officer’s
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or Golenbock
shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(mm) Board
of Directors. The Board of Directors is comprised of the persons set forth in the SEC Reports. The qualifications of the persons serving
as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act and the rules promulgated thereunder
applicable to the Company and the rules of the Trading Market. At least one member of the Board of Directors qualifies as a “financial
expert” as such term is defined under the Sarbanes-Oxley Act and the rules promulgated thereunder and the rules of the Trading Market.
In addition, except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, at least
a majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of the Trading
Market.
Except as disclosed
in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, the Board of Directors has validly established
an audit committee whose composition satisfies, and upon completion of the Offering will satisfy, the requirements of Section 303A of
the Nasdaq Listing Rules and the Board of Directors and/or the audit committee of the Board of Directors has adopted a charter that satisfies
the requirements of Section 303A of the Nasdaq Listing Rules.
The Board of Directors
has validly established a compensation committee whose composition satisfies, and upon completion of the Offering will satisfy, the requirements
of Section 303A of the Nasdaq Listing Rules and the Board of Directors and/or the compensation committee of the Board of Directors has
adopted a charter that satisfies the requirements of Section 303A of the Nasdaq Listing Rules.
The Board of Directors
have adopted a claw back policy which meets the requirements of Nasdaq and filed the same with its SEC Reports.
(nn) Cyber
Security. Except as may be included or incorporated by reference in the Registration Statement, the General Disclosure Package or
the Prospectus Supplement, (i)(x) to the Company’s knowledge, there has been no material security breach or other material compromise
of or relating to any of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware,
software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or
on behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries
have not been notified of, and has no knowledge of any event or condition that would reasonably be expected to result in, any material
security breach or other material compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this
clause (ii), individually or in the aggregate, result in a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented
and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster
recovery technology consistent with industry standards and practices.
(oo) Environmental
Laws. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement: (i) the Company
and each of its Subsidiaries is in compliance in all material respects with all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Law”) which are applicable to its business; (ii); the Company
and each of its Subsidiaries has received and are in compliance with all Permits required of it under applicable Environmental Laws to
conduct its business and is in compliance in all material respects with all terms and conditions of any such Permit; (iii) neither the
Company nor any of its Subsidiaries has received any notice of any actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants; (iv) to the knowledge of the Company,
no facts currently exist that will require either Company or its Subsidiaries to make future material capital expenditures to comply with
Environmental Laws; and (v) no property which is or has been owned, leased or occupied by either of the Company or its Subsidiaries has
been designated as a “Superfund site” pursuant to the Comprehensive Environmental Response, Compensation of Liability Act
of 1980, as amended (42 U.S.C. Section 9601, et. seq.) (“CERCLA”), or otherwise designated as a contaminated site under
applicable state or local law. Neither the Company nor its Subsidiaries has been named as a “potentially responsible party”
under CERCLA; except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required
Permits or liability as would not, individually or in the aggregate, have a Material Adverse Effect.
(pp) Iran
Sanctions. Neither the Company nor any of its directors or officers or, to the knowledge of the Company, any agent, employee, affiliate
or other person acting on behalf of the Company has engaged in any activities sanctionable under the Comprehensive Iran Sanctions, Accountability,
and Divestment Act of 2010, the Iran Sanctions Act of 1996, the National Defense Authorization Act for Fiscal Year 2012, the Iran Threat
Reduction and Syria Human Rights Act of 2012 or any Executive Order relating to any of the foregoing (collectively, and as each may be
amended from time to time, the “Iran Sanctions”); and the Company will not knowingly, directly or indirectly use the
proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other
person or entity, for the purpose of engaging in any activities sanctionable under the Iran Sanctions.
(qq) Statistical
and Market Related Data. The statistical and market related data included in the Registration Statement, the General Disclosure Package
or the Prospectus Supplement are based on or derived from sources that the Company believes to be reliable and accurate. The Company had
a reasonable basis for, and made in good faith, each “forward-looking statement” (within the meaning of Section 27A of the
Act or Section 21E of the Exchange Act) contained or incorporated by reference in the Registration Statement, the General Disclosure Package
or the Prospectus Supplement.
(rr) Stabilization
or Manipulation. Neither the Company nor any of its Subsidiaries has taken, nor will it take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in, or which has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Common Stock or any other security of the Company to facilitate the sale or resale
of any of Public Securities.
(ss) Prohibited
Activities. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, and as
preapproved in accordance with the requirements set forth in Section 10A of the Exchange Act, the Auditors have not been engaged by the
Company to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).
(tt) Off-Balance
Sheet Arrangements. Except as disclosed in the Registration Statement or in the General Disclosure Package, there are no material
off-balance sheet arrangements (as defined in Item 303 of Regulation S-K) that have or are reasonably likely to have a material current
or future effect on the Company’s financial condition, revenues or expenses, changes in financial condition, results of operations,
liquidity, capital expenditures or capital resources.
(uu) No Payment
of Net Proceeds to FINRA Members. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA
member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(vv) Compliance
with Laws. Each of the Company and its Subsidiaries: (i) is and at all times has been in compliance with all statutes, rules, or regulations
applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company or its Subsidiaries
(“Applicable Laws”), except as could not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect; (ii) 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 foreign, federal state or local governmental authority alleging or asserting noncompliance with any
Applicable Laws or any Permits or amendments thereto required by any such Applicable Laws (“Authorizations”); (iii)
possesses all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation
of any term of any such Authorizations; (iv) has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any foreign, federal state or local governmental authority or third party alleging that any product operation
or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such governmental authority or third
party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received notice that
any foreign, federal state or local governmental authority has taken, is taking or intends to take action to limit, suspend, modify or
revoke any Authorizations and has no knowledge that any such governmental authority is considering such action; (vi) has filed, obtained,
maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a
subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear healthcare provider”
letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation
and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
(ww) Regulatory
Filings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus Supplement, neither
the Company nor any of its Subsidiaries has failed to file with the applicable governmental authorities (including, without limitation,
the FDA, or any foreign, federal, state, provincial or local governmental authority performing functions similar to those performed by
the FDA) any required filing, declaration, listing, registration, report or submission, except for such failures that, individually or
in the aggregate, would not have a Material Adverse Effect; except as disclosed in the Registration Statement, the General Disclosure
Package or the Prospectus Supplement, all such filings, declarations, listings, registrations, reports or submissions were in compliance
with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such
filings, declarations, listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate,
would not have a Material Adverse Effect. The Company has operated and currently is, in all material respects, in compliance with the
United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state, local and
foreign governmental authority exercising comparable authority. The Company has no knowledge of any studies, tests or trials not described
in the Prospectus the results of which reasonably call into question in any material respect the results of the studies, tests and trials
described in the Registration Statement, the General Disclosure Package and/or the Prospectus Supplement.
(xx) Clinical
Studies. The preclinical studies and tests and clinical trials described in the Registration Statement, the General Disclosure Package
or the Prospectus Supplement were, and, if still pending, are being conducted in all material respects in accordance with the experimental
protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards for products or product
candidates comparable to those being developed by the Company; the descriptions of such studies, tests and trials, and the results thereof,
contained in the Registration Statement, the General Disclosure Package or the Prospectus Supplement are accurate and complete in all
material respects; the Company is not aware of any tests, studies or trials not described in the Registration Statement, the General Disclosure
Package or the Prospectus Supplement, the results of which reasonably call into question the results of the tests, studies and trials
described in the Registration Statement, the General Disclosure Package or the Prospectus Supplement, as applicable; and the Company has
not received any written notice or correspondence from the FDA or any federal, foreign, state or local governmental authority exercising
comparable authority or any institutional review board or comparable authority requiring the termination, suspension, clinical hold or
material modification of any tests, studies or trials.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Amendments
to Registration Statement. The Company has delivered, or will as promptly as practicable deliver, to the Underwriters complete conformed
copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed
copies of the Registration Statement (without exhibits), the General Disclosure Package and the Prospectus Supplement, as amended or supplemented,
in such quantities and at such places as an Underwriter reasonably requests. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and
sale of the Public Securities other than the the Registration Statement, the General Disclosure Package and Prospectus Supplement, and
copies of the documents incorporated by reference therein. The Company shall not file any such amendment or supplement to which the Representative
shall reasonably object in writing.
4.2 Federal
Securities Laws.
(a) Compliance.
During the time when the General Disclosure Package and Prospectus Supplement is required to be delivered under the Securities Act, the
Company will use its commercially reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the rules
and regulations thereunder and the Exchange Act and the rules and regulations thereunder, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the General Disclosure
Package and Prospectus Supplement. If at any time when the General Disclosure Package and Prospectus Supplement relating to the Public
Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which, in the opinion of
counsel for the Company or counsel for the Underwriters, the Prospectus, any Preliminary Prospectus, any Permitted Free Writing Prospectus
or Prospectus Supplement, as then amended or supplemented, includes an untrue statement of a material fact or omits 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, or if it is necessary at any time to amend those documents to comply with the Securities Act, the Company will notify
the Underwriters promptly and prepare and file with the Commission, subject to Section 4.1 hereof, an appropriate amendment or supplement
in accordance with Section 10 of the Securities Act.
(b) Filing
of Final Prospectus Supplement. The Company will file the Prospectus Supplement (in form and substance satisfactory to the Representative)
with the Commission pursuant to the requirements of Rule 424.
(c) Exchange
Act Registration. For a period of two (2) years from the Execution Date, the Company will use its commercially reasonable efforts
to maintain the registration of the Common Stock under the Exchange Act. The Company will not deregister the Common Stock under the Exchange
Act without the prior written consent of the Representative, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) Free
Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating to the Public Securities
that would constitute an issuer free writing prospectus, as defined in Rule 433 of the rules and regulations under the Securities Act,
without the prior written consent of the Representative. Any such free writing prospectus consented to by the Representative is herein
referred to as a “Permitted Free Writing Prospectus”. The Company represents that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus” as defined in Rule 405 under the Securities Act, and has complied
and will comply with the applicable requirements of Rule 433 of the Securities Act, including timely Commission filing where required,
legending and record keeping.
4.3 Delivery
to the Underwriters of Prospectuses. The Company will deliver to the Underwriters, without charge, from time to time during the period
when the Preliminary Prospectus, Prospectus and Prospectus Supplement is required to be delivered under the Securities Act or the Exchange
Act such number of copies of each Preliminary Prospectus, Prospectus, Prospectus Supplement, and Permitted Free Writing Prospectus as
the Underwriters may reasonably request, including exhibits, and all post-effective amendments thereto and copies of all exhibits filed
therewith or incorporated therein by reference and all original executed consents of certified experts.
4.4 Effectiveness
and Events Requiring Notice to the Underwriters. The Company will use its commercially reasonable efforts to cause the Registration
Statement to remain effective with a current prospectus until nine (9) months from the Execution Date, and will notify the Underwriters
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 its 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 Public Securities for offering or sale in any jurisdiction or of the initiation, or to its 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, General Disclosure Package or Prospectus Supplement; (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 4.4 that, in
the judgment of the Company, makes any statement of a material fact made in the Registration Statement, General Disclosure Package or
Prospectus Supplement untrue or that requires the making of any changes in the Registration Statement or the Preliminary Prospectus, Prospectus
and Prospectus Supplement 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 will
use commercially reasonable efforts to obtain promptly the lifting of such order.
4.5 Review
of Financial Statements. For a period of five (5) years from the Execution Date, so long as the Common Stock is registered pursuant
to the Exchange Act, the Company, at its expense, shall cause its regularly engaged independent registered public accountants to review
(but not audit) the Company’s financial statements for each of the first three (3) fiscal quarters prior to the announcement of
quarterly financial information.
4.6 Expenses
of the Offering.
(a) General
Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and each Option Closing Date, if any,
to the extent not paid at the Closing Date, all reasonable, necessary and accountable out-of-pocket expenses incident to the performance
of the obligations of the Company under this Agreement (except for those that FINRA regulation requires to be borne by a selling agent,
placement agent or underwriter), including, but not limited to: (a) all filing fees and communication expenses relating to the registration
of the Public Securities to be sold in the Offering (including the Option Securities) with the Commission; (b) all FINRA Public Offering
Filing System fees associated with the review of the Offering by FINRA; all fees and expenses relating to the listing of such Closing
Securities and Option Securities on the Trading Market and such other stock exchanges as the Company and the Representative together determine;
(c) all fees, expenses and disbursements relating to the registration or qualification of such Public Securities under the “blue
sky” securities laws of such states and other foreign jurisdictions as the Representative may reasonably designate (including, without
limitation, all filing and registration fees, and the fees and expenses of Blue Sky counsel); (d) 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 and Prospectus
Supplements as the Representative may reasonably deem necessary; (e) the costs and expenses of the Company’s public relations firm;
(f) the costs of preparing, printing and delivering the Public Securities; (g) fees and expenses of the Transfer Agent for the Public
Securities (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company);
(h) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters; (i) the fees
and expenses of the Company’s accountants; (j) the fees and expenses of the Company’s legal counsel and other agents and representatives;
and (k) the Underwriters’ costs of mailing prospectuses to prospective investors. The Underwriters may deduct from the net proceeds
of the Offering payable to the Company on the Closing Date, or each Option Closing Date, if any, the expenses set forth herein to be paid
by the Company to the Underwriters, subject to the maximum amount permitted under Section 4.6(b).
4.7 Application
of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application
described under the caption “Use of Proceeds” in the Prospectus Supplement.
4.8 Delivery
of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable,
but not later than the first day of the fifteenth full calendar month following the Execution Date, an earnings statement (which need
not be certified by independent public or independent certified public accountants unless required by the Securities Act or the Rules
and Regulations under the Securities Act, 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 consecutive months beginning after the Execution Date.
4.9 Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative)
has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to
cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Public Securities.
4.10 Internal
Controls. The Company shall use commercially reasonable 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.
4.11 Accountants.
The Company shall continue to retain a nationally recognized independent certified public accounting firm for a period of at least five
(5) years after the Execution Date. The Underwriters acknowledge that the Company Auditor is acceptable to the Underwriters.
4.12 FINRA.
The Company shall advise the Underwriters (who shall make an appropriate filing with FINRA) if it is aware that any 10% or greater shareholder
of the Company becomes an affiliate or associated person of an Underwriter.
4.13 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
and commercial in nature, based on arms-length negotiations and that neither the Underwriters nor their affiliates or any selected dealer
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. Notwithstanding anything in this Agreement to
the contrary, the Company acknowledges that the Underwriters may have financial interests in the success of the Offering that are not
limited to the difference between the price to the public and the purchase price paid to the Company by the Underwriters for the shares
and the Underwriters have no obligation to disclose, or account to the Company for, any of such additional financial interests. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of fiduciary duty.
4.14 Board
Composition and Board Designations. While the Common Stock is listed on the Trading Market, the Company shall ensure that: (i) the
qualifications of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley
Act and the rules promulgated thereunder and with the listing requirements of the Trading Market and (ii) if applicable, at least
one member of the Board of Directors qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act
and the rules promulgated thereunder.
4.15 Securities
Laws Disclosure; Publicity. At the request of the Representative, by 8:30 a.m. (New York City time) on the date hereof, the Company
shall issue a press release disclosing the material terms of the Offering. The Company and the Representative shall consult with each
other in issuing any other press releases with respect to the Offering, and neither the Company nor any Underwriter shall issue any such
press release nor otherwise make any such public statement without the prior written consent of the Company, with respect to any press
release of such Underwriter, or without the prior written consent of such Underwriter, with respect to any press release of the Company,
which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law in the reasonable judgment of
the disclosing party’s counsel, in which case the disclosing party shall promptly provide the other party with prior notice of such
public statement or communication. The Company will not issue press releases or engage in any other publicity, without the Representative’s
prior written consent, for a period ending at 5:00 p.m. (New York City time) on the first Business Day following the 45th day following
the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business or as otherwise
permitted under the terms of this Section 4.15.
4.16 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Underwriter
of the Public Securities is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company,
or that any Underwriter of Public Securities could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Public Securities.
4.17 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Option
Securities pursuant to the Over-Allotment Option, including for the avoidance of doubt, the Common Stock underlying the Underwriter Warrant
pursuant to the terms thereof for the reservation of shares of Common Stock.
4.18 Listing
of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of the Common
Stock (including the Closing Shares, the Option Shares, and the Common Stock underlying the Underwriter Warrant) on the Trading Market
on which it is currently listed. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading
Market, it will then include in such application all of the Closing Shares, Option Shares and the Common Stock underlying the Underwriter
Warrant, and will take such other action as is necessary to cause all of such shares of Common Stock to be listed or quoted on such other
Trading Market as promptly as possible. The Company will then take commercially reasonable efforts to continue the listing and trading
of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations
under the bylaws or rules of the Trading Market. The Company agrees use commercially reasonable efforts to maintain the eligibility of
the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including,
without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection
with such electronic transfer.
4.19 Reserved.
4.20 Subsequent
Equity Sales.
(a) Unless
mutually agreed upon in writing, by the Underwriter and the Company, from the date hereof until the twelve (12) month anniversary of the
date hereof, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or propose or announce the issuance
or proposed issuance of any shares of Common Stock or Common Stock Equivalents or file any registration statement or amendment or supplement
thereto, including without limitation, in connection with any at-the-market or similar agreement but excluding that certain ATM Sales
Agreement, dated as of May 2, 2024, by and between the Company and the Underwriter, other than (i) the Prospectus Supplement or any other
amendments and supplements to the Registration Statement in connection with the Offering, (ii) a registration statement on Form S-8 or
(iii) a registration statement covering the Common Stock underlying the Underwriter Warrants.
(b) Unless
mutually agreed upon in writing, by the Underwriter and the Company, from the date hereof until the twelve (12) month anniversary of the
date hereof, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any
of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.
“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either
(A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of
or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security
or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for
the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of
credit, whereby the Company may issue securities at a future determined price regardless of whether shares pursuant to such agreement
have actually been issued and regardless of whether such agreement is subsequently canceled. Any Underwriter shall be entitled to obtain
injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.20 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
4.21 Research
Independence. The Company acknowledges that each Underwriter’s research analysts and research departments, if any, are required
to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and
that such Underwriter’s research analysts may hold and make statements or investment recommendations and/or publish research reports
with respect to the Company and/or the Offering that differ from the views of its investment bankers. The Company hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company may have against such Underwriter with respect to any conflict of
interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such Underwriter’s investment banking divisions.
The Company acknowledges that the Representative is a full service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of its customers and hold long or short position in debt or
equity securities of the Company.
ARTICLE V.
DEFAULT BY UNDERWRITERS
If
on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the Closing
Securities or Option Securities, as the case may be, which such Underwriter has agreed to purchase and pay for on such date (otherwise
than by reason of any default on the part of the Company), the Representative, or if the Representative is the defaulting Underwriter,
the non-defaulting Underwriters, shall use their reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters,
or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Securities
or Option Securities, as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours
the Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Securities or Option Securities,
as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing
Securities or Option Securities, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing
Securities or Option Securities, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Closing Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder,
to purchase the Closing Securities or Option Securities, as the case may be, which such defaulting Underwriter or Underwriters failed
to purchase, or (b) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such
default shall occur exceeds 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the Company or the
Representative will have the right to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of
the Company except to the extent provided in Article VI hereof; provided that if the default occurs with respect to the Option Securities
only, this Agreement may not be terminated by the Representative as to the Closing Securities. In the event of a default by any Underwriter
or Underwriters, as set forth in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven days,
as the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting Underwriters, may determine in order
that the required changes in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter”
includes any Person substituted for a defaulting Underwriter. Any action taken under this Section shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this Agreement.
ARTICLE VI.
INDEMNIFICATION
6.1 Indemnification
of the Underwriters. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Underwriters,
and each dealer selected by each Underwriter that participates in the offer and sale of the Public Securities (each a “Selected
Dealer”) and each of their respective directors, officers and employees and each Person, if any, who controls such Underwriter
or any Selected Dealer (“Controlling Person”) 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 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 such Underwriter and the Company or between such Underwriter 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) any Permitted Free Writing Prospectus or Preliminary Prospectus, if any, the Registration
Statement, the Prospectus or Prospectus Supplement (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 of the Public
Securities, 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 Article VI, collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public
Securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, Trading Market or
any 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 light of the circumstances under which they were made, not misleading, unless such statement or omission
was made in reliance upon and in conformity with written information furnished to the Company with respect to the applicable Underwriter
by or on behalf of such Underwriter expressly for use in any Permitted Free Writing Prospectus or Preliminary Prospectus, if any, the
Registration Statement, Prospectus or Prospectus Supplement, or any amendment or supplement thereto, or in any application, as the case
may be. With respect to any untrue statement or omission or alleged untrue statement or omission made in a Preliminary Prospectus, if
any, the indemnity agreement contained in this Section 6.1 shall not inure to the benefit of an Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact that a copy of the Prospectus and final Prospectus Supplement
was not given or sent to the Person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale
of the Public Securities to such Person as required by the Securities Act and the rules and regulations thereunder, and if the untrue
statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus and final Prospectus Supplement
was a result of non-compliance by the Company with its obligations under this Agreement. The Company agrees promptly to notify each Underwriter
of the commencement of any litigation or proceedings against the Company or any of its officers, directors or Controlling Persons in connection
with the issue and sale of the Public Securities or in connection with the Registration Statement, Prospectus and Prospectus Supplement.
6.2 Procedure.
If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought
against the Company pursuant to Section 6.1, such Underwriter, Selected Dealer or Controlling Person, as the case may be, shall promptly
notify the Company in writing of the institution of such action and the Company shall assume the defense of and may settle such action,
including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or Selected Dealer, or Controlling
Person as the case may be) and payment of actual expenses. Such Underwriter, Selected Dealer or Controlling Person 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,
Selected Dealer or Controlling Person unless (a) 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 (b) the Company shall not have employed counsel to have charge
of the defense of such action within a reasonable time after receiving written notification of the applicable action by the Underwriter,
Selected Dealer or Controlling Person, as the case may be, or (c) the named parties to any such
proceeding (including any impleaded parties) include both the Company, on the one hand, and an Underwriter, Selected Dealer or Controlling
Person, on the other hand, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them, in any of which events set forth in clauses (a), (b) and (c) the reasonable fees and expenses of not more
than one additional firm of attorneys (subject to the reasonable approval of the Company) selected by such Underwriter (in addition to
local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained
herein, if any Underwriter, Selected Dealer or Controlling Person 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.
6.3 Indemnification
of the Company. Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, its directors, officers
and employees and agents 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 such Underwriter,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in any Permitted
Free Writing Prospectus or Preliminary Prospectus, if any, the Registration Statement, Prospectus or Prospectus Supplement or any amendment
or supplement thereto or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company
with respect to such Underwriter by or on behalf of such Underwriter expressly for use in such Permitted Free Writing Prospectus or Preliminary
Prospectus, if any, the Registration Statement, Prospectus, or Prospectus Supplement or any amendment or supplement thereto or in any
such application. For purposes of this Section 6.3, it is acknowledged that the information provided by the Underwriter or on behalf of
the Underwriter is only the Underwriter Information. In case any action shall be brought against the Company or any other Person so indemnified
based on any Permitted Free Writing Prospectus or Preliminary Prospectus, if any, the Registration Statement, Prospectus, or Prospectus
Supplement or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against such Underwriter,
such Underwriter shall have the rights and duties given to the Company, and the Company and each other Person so indemnified shall have
the rights and duties given to such Underwriter by the provisions of this Article VI. The Underwriters' obligations in this Section 6.3
to indemnify the Company are several in proportion to their respective underwriting obligations and not joint. Notwithstanding the provisions
of this Section 6.3, no Underwriter shall be required to indemnify the Company or its directors, officers and employees and agents who
control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act for any amount in excess
of the underwriting discounts and commissions applicable to the Public Securities purchased by such Underwriter.
6.4 Contribution.
(a) Contribution
Rights. In order to provide for just and equitable contribution under the Securities Act in any case in which (i) any Person entitled
to indemnification under this Article VI makes a claim for indemnification pursuant hereto but it is judicially determined (by the entry
of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right
of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Article VI provides for indemnification
in such case, or (ii) contribution under the Securities Act, the Exchange Act or otherwise may be required on the part of any such Person
in circumstances for which indemnification is provided under this Article VI, then, and in each such case, the Company and each Underwriter,
severally and not jointly, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and such Underwriter, as incurred, in such proportions that such Underwriter is responsible
for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the
initial offering price appearing thereon and the Company is responsible for the balance; provided, that, no Person guilty of a 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. For purposes of this Section, each director, officer and employee of such Underwriter
or the Company, as applicable, and each Person, if any, who controls such Underwriter or the Company, as applicable, within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution as such Underwriter or the Company, as applicable. Notwithstanding
the provisions of this Section 6.4, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Public Securities purchased by such Underwriter. The Underwriters' obligations in this Section 6.4 to
contribute are several in proportion to their respective underwriting obligations and not joint.
(b) Contribution
Procedure. Within fifteen 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 fifteen 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 without the written
consent of such contributing party. The contribution provisions contained in this Section 6.4 are intended to supersede, to the extent
permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available.
ARTICLE VII.
MISCELLANEOUS
7.1 Termination.
(a) Termination
Right. The Representative 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 any Trading Market shall have been suspended or materially
limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required
by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall
have become involved in a new war or an increase in major hostilities, or (iv) if a banking moratorium has been declared by a New
York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely
impacts the United States securities markets, or (vi) if the Company shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will,
in the Representative’s opinion, make it inadvisable to proceed with the delivery of the Public Securities, or (vii) if the
Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall
have become aware after the date hereof of such a material adverse change in the conditions or prospects of the Company, or such adverse
material change in general market conditions as in the Representative’s judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
(b) Reserved
(c) 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 Article VI shall not be in any way effected by such election or termination
or failure to carry out the terms of this Agreement or any part hereof.
7.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement
(together with the other agreements and documents being delivered pursuant to or in connection with this Agreement), contain the entire
understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
7.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via e-mail
attachment at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading
Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail attachment at the
e-mail address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York
City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages attached hereto.
7.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
7.5 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
7.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
7.7 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting
in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any other manner permitted by law. If either party shall commence a Proceeding to enforce any
provisions of the Transaction Documents, then, in addition to the obligations of the Company under Article VI, the prevailing party in
such Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such Proceeding.
7.8 Survival.
The representations and warranties contained herein shall survive the Closing and the Option Closing, if any, and the delivery of the
Public Securities.
7.9 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
7.10 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
7.11 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Underwriters
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
7.12 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
7.13 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
7.14 WAIVER
OF JURY TRIAL. IN ANY PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE
LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE FOREVER ANY RIGHT TO TRIAL BY JURY.
(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 among the Company and the several Underwriters in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
HEARTBEAM, INC. |
| |
By: |
/s/ Robert Eno |
| |
|
Name: Robert Eno |
| |
|
Title: Chief Executive Officer |
Address for Notice:
HeartBeam, Inc., 2118 Walsh Avenue, Suite 210, Santa Clara, CA 95050,
Attention: Tim Cruickshank, Email: [***]
Copy to (which will not serve as notice):
Lucosky Brookman LLP, 111 Broadway, Suite 807, New York, NY 10006,
Attn: Soyoung Lee, Email: [***]
Accepted on the date first above written.
Public Ventures, LLC
As the Representative of the several
Underwriters listed on Schedule I
By: Public Ventures, LLC
| By: |
/s/ Anthony DiGiandomenico |
|
| |
Name: Anthony DiGiandomenico |
|
| |
Title: Head of Investment Banking |
|
Address for Notice:
14135 Midway Road, Suite G-150
Addison, TX 75001
Attention: Anthony DiGiandomenico, Email: [***]
Copy to (which will not serve
as notice):
Golenbock Eiseman Assor Bell & Peskoe LLP
711 Third Avenue, 17th Floor
New York City, New York 10017
Attention: Andrew D. Hudders, Email: [***]
SCHEDULE I
Schedule
of Underwriters
| Underwriters | |
Closing
Shares | | |
Closing
Purchase
Price | |
| Public Ventures, LLC | |
| 5,882,353 | | |
$ | 9,075,000.09 | |
| Total | |
| 5,882,353 | | |
$ | 9,075,000.09 | |
42
