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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
June 13, 2024
REZOLUTE, INC.
(Exact Name of Registrant as Specified in Charter)
| Nevada |
|
001-39683 |
|
27-3440894 |
|
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
275 Shoreline Drive, Suite 500, Redwood City,
CA 94065
(Address of Principal Executive Offices, and
Zip Code)
650-206-4507
Registrant’s Telephone Number, Including
Area Code
Not Applicable
(Former Name
or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
| ¨ |
Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
| Common Stock, par value $0.001 per share |
RZLT |
Nasdaq Capital Market |
Indicate by check mark
whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth
company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On June 13, 2024, Rezolute, Inc. (the
“Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Jefferies LLC and Cantor Fitzgerald & Co., as
representatives of the underwriters listed therein (the “Underwriters”), relating to the issuance and sale in an
underwritten public offering (the “Public Offering”) by the Company of (i) 11,250,000 shares (the
“Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”),
at a public offering price of $4.00 per share, and (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase
up to 3,750,000 shares of Common Stock at a public offering of $3.999 per Pre-Funded Warrant, which represents the per
share public offering price for the Shares less the $0.001 per share exercise price for each Pre-Funded Warrant.
The Shares, Pre-Funded Warrants and the Option Shares (as defined below) in the Public Offering were offered pursuant to a registration statement on
Form S-3 (File No. 333-275562), as amended (the “Registration Statement”), which was declared effective by the Securities and Exchange Commission (the
“SEC”) on November 29, 2023 under the Securities Act of 1933, as amended (the “Securities Act”). In addition, we have also granted the Underwriters an option for a period of 30 days to purchase an additional 2,250,000 shares of the
Company’s Common Stock (the “Option Shares”) at a price of $4.00 per share (the “Option”).
The net proceeds of the Public Offering to the Company, after
deducting the underwriting discounts and commissions and offering expenses payable by the Company were approximately $56.0 million.
If the Option is exercised in full the net proceeds to the Company will be approximately $64.5 million. The Company intends to use
the net proceeds from the Public Offering to fund research and development and for working capital and general
corporate purposes.
The Underwriting Agreement contains customary representations, warranties
and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters, including
for liabilities under the Securities Act, and other obligations of the parties and termination provisions. The representations, warranties
and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely
for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including
being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting Agreement.
Subject to certain
exceptions, certain of the Company’s officers, directors and stockholders agreed not to sell or otherwise dispose of any
of the Common Stock held by them for a period beginning on the date of execution of the applicable lock-up agreements by each such
officer and director and ending 90 days after the date of the final prospectus supplement filed with the SEC in connection with the
Public Offering pursuant to Rule 424(b) under the Securities Act without first obtaining the written consent of
Jefferies LLC. The foregoing summary of the Underwriting Agreement does not purport to be complete and is subject to, and qualified
in its entirety by, the Underwriting Agreement, which is filed herewith as Exhibit 1.1 and incorporated herein by
reference.
The Pre-Funded Warrants offered in the Public Offering have
an exercise price of $0.001 per share, which is subject to adjustment in the event of certain stock dividends and distributions, stock
splits, stock combinations, reclassifications or similar events affecting the Common Stock and also upon any distributions for no consideration
of assets to the Company's stockholders. Each Pre-Funded Warrant is exercisable at any time and from time to time after issuance. In the
event of certain fundamental transactions, the holders of the Pre-Funded Warrants will be entitled to receive, upon exercise of the Pre-Funded
Warrants, the kind and amount of securities, cash or other property that the holders would have received had they exercised the Pre-Funded
Warrants immediately prior to such transaction. The Pre-Funded Warrants do not entitle the holders thereof to any voting rights or any
of the other rights or privileges to which holders of Common Stock are entitled. The Company may not effect the exercise of any Pre-Funded Warrants, and a holder will not be entitled to exercise any portion of any Pre-Funded
Warrant that, upon giving effect to such exercise, would result in: (i) the aggregate number of shares of Common Stock beneficially owned
by such holder (together with its affiliates) to exceed 4.99% (or, at the election of the holder, up to 19.99%) of the number of shares
of Common Stock outstanding immediately after giving effect to the exercise, or (ii) the combined voting power of the Company’s
securities beneficially owned by such holder (together with its affiliates) to exceed 4.99% (or, at the election of the holder, up to
19.99%) of the combined voting power of all of the Company’s securities then outstanding immediately after giving effect to the
exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded warrants, which percentage may be
changed at the holder’s election to a higher or lower percentage not in excess of 19.99% upon at least 61 days’ notice to
the Company. The foregoing summary of the Pre-Funded Warrants does
not purport to be complete and is subject to, and qualified in its entirety by, the form of Pre-Funded Warrant, which is filed herewith
as Exhibit 4.1 and incorporated herein by reference.
A copy of the opinion of Dorsey & Whitney LLP relating to
the legality of the issuance and sale of the Shares and Pre-Funded Warrants offered in the Public Offering, and
shares of Common Stock issuable upon the exercise of the Pre-Funded Warrants offered in the Public Offering, is attached as
Exhibit 5.1 hereto and is hereby incorporated by reference into the Registration Statement.
| Item 7.01 |
Regulation FD Disclosure. |
On June 13, 2024, the Company issued issued a press release announcing the pricing of an underwritten
public offering of 11,250,000 shares of its common stock at a public offering price of $4.00 per share and, to certain investors in
lieu of common stock, pre-funded warrants to purchase up to 3,750,000 shares of its common stock at a public offering price of $3.999
per pre-funded warrant, which represents the per share public offering price for the common stock less the $.001 per share exercise price
for each pre-funded warrant. Net proceeds from the underwritten public offering before deducting underwriting discounts and commissions, placement agent commissions and other offering expenses are expected
to be approximately $60 million. The text of the press release is included as Exhibit 99.1 to this Form 8-K and is incorporated
herein by reference.
The information in Item 7.01 of this Current Report on Form 8-K,
including the attached Exhibit 99.1 is being furnished pursuant to Item 7.01 and shall not be deemed to be “filed” for
any purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject
to the liabilities of such section, and shall not be deemed to be incorporated by reference into any of the Company's filings under the
Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation
language in such filings, except to the extent expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit Description
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
REZOLUTE, INC. |
| |
|
|
| DATE: June 14, 2024 |
By: |
/s/ Nevan Charles Elam |
| |
|
Nevan Charles Elam |
| |
|
Chief Executive Officer |
Exhibit 1.1
11,250,000 Shares of Common Stock
and
Pre-Funded Warrants to Purchase 3,750,000 Shares
of Common Stock
Rezolute, Inc.
UNDERWRITING AGREEMENT
June 13, 2024
JEFFERIES LLC
CANTOR FITZGERALD & CO.
As Representatives of the several Underwriters
c/o JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
c/o CANTOR FITZGERALD & CO.
110 E. 59th Street, 6th Floor
New York, New York 10022
Ladies and Gentlemen:
Introductory.
Rezolute, Inc., a Nevada corporation (the “Company”), proposes to issue and sell to the several underwriters named
in Schedule A (the “Underwriters”) (i) an aggregate of 11,250,000 shares of its common stock, par value $0.001
per share (the “Common Stock”) and (ii) pre-funded warrants of the Company (in the form attached hereto as Exhibit C)
to purchase 3,750,000 shares of Common Stock (the “Pre-Funded Warrants”). The 11,250,000 shares of Common Stock to be
sold by the Company are called the “Firm Shares.” As used herein “Warrant Shares” means the shares
of Common Stock issuable upon exercise of the Pre-Funded Warrants. In addition, the Company has granted to the Underwriters an option
to purchase up to an additional 2,250,000 shares of Common Stock. The additional 2,250,000 shares of Common Stock to be sold by the Company
pursuant to such option are called the “Optional Shares.” The Firm Shares and, if and to the extent such option is
exercised, the Optional Shares are collectively called the “Offered Shares.” The Offered Shares and the Pre-Funded
Warrants to be sold by the Company are collectively referred to as the “Securities.” Jefferies LLC (“Jefferies”)
and Cantor Fitzgerald & Co. have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”)
in connection with the offering and sale of the Securities. To the extent there are no additional underwriters listed on Schedule A,
the term “Representative” as used herein shall mean you, as Underwriter, and the term “Underwriters” shall mean
either the singular or the plural, as the context requires.
The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a shelf registration
statement on Form S-3, File No. 333-275562, including a base prospectus (the “Base Prospectus”), covering
the Securities and the Warrant Shares, to be used in connection with the public offering and sale of the Securities. Such registration
statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities
Act”), including all documents incorporated or deemed to be incorporated by reference therein and any information deemed to
be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the “Registration
Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act in connection
with the offer and sale of the Securities is called the “Rule 462(b) Registration Statement,” and from and
after the date and time of filing of any such Rule 462(b) Registration Statement the term “Registration Statement”
shall include the Rule 462(b) Registration Statement. Any prospectus supplement to the Base Prospectus in preliminary
form that describes the Securities and the offering thereof and is used prior to the filing of the Prospectus (as defined below), together
with the Base Prospectus, is called a “preliminary prospectus.” The final prospectus supplement dated June 13, 2024
describing the Securities and the offering thereof in the form first used by the Underwriters to confirm sales of the Securities or in
the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities
Act, together with the free writing prospectuses, if any (the “Time of Sale Prospectus”), together with the Base Prospectus,
is called the “Prospectus.” As used herein, “Applicable Time” is 7:00 p.m. (New
York City time) on June 13, 2024. As used herein, “free writing prospectus” has the meaning set forth in Rule 405
under the Securities Act, if any, identified in Schedule B hereto. As used herein, “Road Show” means a “road
show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Securities contemplated hereby that
is a “written communication” (as defined in Rule 405 under the Securities Act); and “Marketing Materials”
means any materials or information provided, presented or transmitted simultaneously to investors by the Company in connection with the
marketing of the offering of the Securities, including any roadshow or investor presentations made to investors by the Company (whether
in-person or electronically).
All references in this Agreement to the Registration
Statement, any preliminary prospectus, the Base Prospectus and the Prospectus shall include the documents incorporated or deemed to be
incorporated by reference therein. All references in this Agreement to financial statements and schedules and other information which
are “contained,” “included” or “stated” in, or “part of” the Registration Statement, the
Rule 462(b) Registration Statement, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
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 Rule 462(b) Registration Statement,
any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be.
All references in this Agreement to amendments
or supplements to the Registration Statement, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Exchange Act”) that is or is deemed to be incorporated by reference
in the Registration Statement, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the
case may be. All references in this Agreement to (i) the Registration Statement, any preliminary prospectus, the Base Prospectus
or the Prospectus, any amendments or supplements to any of the foregoing, or any free writing prospectus, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) and (ii) the
Prospectus shall be deemed to include any “electronic Prospectus” provided for use in connection with the offering of the
Securities as contemplated by Section 3(m) of this Agreement.
The Company hereby confirms its agreements with
the Underwriters as follows:
Section 1. Representations
and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter, as of the date of this Agreement,
as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become effective under the Securities Act. The Company has complied,
to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental information, if any. No stop
order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. At the time the Company’s
Annual Report on Form 10-K for the year ended June 30, 2023 (the “Annual Report”) was filed with the Commission,
or, if later, at the time the Registration Statement was originally filed with the Commission, the Company met the then-applicable requirements
for use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, or became
effective under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements of the Exchange
Act.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the Securities Act) to the copy
thereof delivered to the Underwriters for use in connection with the offer and sale of the Securities. Each of the Registration Statement
and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply in all material respects
with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus
did not, and at the First Closing Date (as defined in Section 2) and at each applicable Option Closing Date (as defined in Section 2),
will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The Prospectus, as of its date, did not, and at the First Closing
Date and at each applicable Option Closing Date, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from
the Registration Statement or any post-effective amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with written information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information consists
of the information described in Section 9(b) below. There are no contracts or other documents required to be described
in the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described
or filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination date referenced in Rule 164(h) under the Securities Act, the
Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of the Securities
pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that the Company is required to file pursuant
to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission, retention and legending,
as applicable, and each such free writing prospectus, as of its issue date and at all subsequent times through the completion of the public
offer and sale of the Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, the Prospectus or any preliminary prospectus unless such information has been
superseded or modified as of such time. Except for the free writing prospectuses, if any, identified in Schedule B, and electronic
road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior
written consent, prepare, use or refer to, any free writing prospectus. Each Road Show, when considered together with the Time of Sale
Prospectus, did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Distribution
of Offering Material By the Company. Prior to the later of (i) the expiration or termination of the option granted to
the several Underwriters in Section 2 and (ii) the completion of the Underwriters’ distribution of the Securities,
the Company has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities
other than the Registration Statement, the Time of Sale Prospectus, the Prospectus or any free writing prospectus reviewed and consented
to by the Representatives, the free writing prospectuses, if any, identified on Schedule B hereto.
(e) The
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(f) Authorization
of the Securities. The Offered Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued
and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Offered Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Offered Shares. The Pre-Funded Warrants have been duly authorized by the Company and, when executed and
delivered by the Company, will be valid and binding agreements of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general equitable principles. The Warrant Shares have been duly authorized
and validly reserved for issuance upon exercise of the Pre-Funded Warrants in a number sufficient to meet the current exercise requirements.
The Warrant Shares, when issued and delivered upon exercise of the Pre-Funded Warrants in accordance therewith, will be validly issued,
fully paid and nonassessable, and the issuance of the Warrant Shares is not subject to any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase the Warrant Shares.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the
Prospectus: (i) there has been no material adverse change, or any development that could be expected to result in a material adverse
change, in (A) the condition, financial or otherwise, or in the earnings, business, properties, operations, operating results, assets,
liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries,
considered as one entity or (B) the ability of the Company to consummate the transactions contemplated by this Agreement or perform
its obligations hereunder (any such change being referred to herein as a “Material Adverse Change”); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent,
including without limitation any losses or interference with their business from fire, explosion, flood, earthquakes, accident or other
calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that
are material, individually or in the aggregate, to the Company and its subsidiaries, considered as one entity, and have not entered into
any transactions not in the ordinary course of business; and (iii) there has not been any material decrease in the capital stock
or any material increase in any short-term or long-term indebtedness of the Company or its subsidiaries and there has been no dividend
or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries,
by any of the Company’s subsidiaries on any class of capital stock, or any repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(i) Independent
Accountants. Each of (a) Grant Thornton LLP, which has reviewed certain interim financial statements (which term as used
in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement, the Time of Sale
Prospectus and the Prospectus and (b) Plante & Moran, PLLC, which has expressed its opinion with respect to the financial
statements (which term as used in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration
Statement, the Time of Sale Prospectus and the Prospectus, is (i) an independent registered public accounting firm as required by
the Securities Act, the Exchange Act, and the rules of the Public Company Accounting Oversight Board (“PCAOB”),
(ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation
S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been
suspended or revoked and who has not requested such registration to be withdrawn.
(j) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement, the Time of Sale Prospectus
and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and
the results of their operations, changes in stockholders’ equity and cash flows for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has
been prepared in accordance with the Commission’s rules and guidelines applicable thereto. No other financial statements or
supporting schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus. Any disclosures
contained in the Registration Statement, any preliminary prospectus, the Prospectus and any free writing prospectus that constitute non-GAAP
financial measures (as defined by the rules and regulations under the Securities Act and the Exchange Act) comply with Regulation
G under the Exchange Act and Item 10 of Regulation S-K under the Securities Act, as applicable. To the Company’s knowledge, no person
who has been suspended or barred from being associated with a registered public accounting firm, or who has failed to comply with any
sanction pursuant to Rule 5300 promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or audited, the
financial statements, supporting schedules or other financial data filed with the Commission as a part of the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(k) Company’s
Accounting System. The Company and each of its subsidiaries make and keep accurate books and records and maintain a system of
internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission's
rules and guidelines applicable thereto.
(l) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are
designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which
the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated by management of the Company for
effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are effective in all material respects to
perform the functions for which they were established. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, including the documents incorporated by reference therein, there have been no significant deficiencies or material
weakness in the Company’s internal control over financial reporting (whether or not remediated) and no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting since the end of the Company’s most recent audited fiscal year. The Company is not aware
of any change in its internal control over financial reporting that has occurred during its most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(m) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and to enter into
and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in
good standing in the State of Nevada and each other jurisdiction in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to be so qualified or in good standing would not, individually
or in the aggregate, result a Material Adverse Change.
(n) Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, except where the failure to be so qualified or in good standing would not, individually
or in the aggregate, result a Material Adverse Change. Each of the Company’s subsidiaries is duly qualified as a foreign corporation,
partnership or limited liability company, as applicable, 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. All of the issued
and outstanding capital stock or other equity or ownership interests of each of the Company’s subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding
capital stock or equity interest in any subsidiary was issued in violation of preemptive or similar rights of any security holder of such
subsidiary. The constitutive or organizational documents of each of the subsidiaries comply in all material respects with the requirements
of applicable laws of its jurisdiction of incorporation or organization and are in full force and effect. The Company does not
own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21
to the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023.
(o) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus under the caption “Capitalization” (other than for subsequent issuances,
if any, pursuant to employee benefit plans, upon the exercise of outstanding options or warrants, or as otherwise described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus). The Offered Shares (including the Warrant Shares) and the Pre-Funded Warrants
conform in all material respects to the description thereof contained in the Time of Sale Prospectus. All of the issued and outstanding
shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance
with all federal and state securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into
or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than those described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. The descriptions of the Company’s stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus accurately and fairly presents the information required to be shown with respect to such plans, arrangements,
options and rights.
(p) Stock
Exchange Listing. The shares of Common Stock are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and are listed on the Nasdaq Capital Market (“Nasdaq”) and the Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the shares of Common Stock under the Exchange Act or delisting the shares of Common
Stock from Nasdaq, nor has the Company received any notification that the Commission or Nasdaq is contemplating terminating such registration
or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of Nasdaq.
(q) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable,
or is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture,
loan, credit agreement, note, lease, license agreement, contract, franchise or other instrument (including, without limitation, any pledge
agreement, security agreement, mortgage or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness)
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of their respective
properties or assets are subject (each, an “Existing Instrument”), except for such Defaults as could not be expected,
individually or in the aggregate, to result in a Material Adverse Change. The Company’s execution, delivery and performance of this
Agreement and the Pre-Funded Warrants, consummation of the transactions contemplated hereby and by the Registration Statement, the Time
of Sale Prospectus and the Prospectus and the issuance and sale of the Securities (including the use of proceeds from the sale of the
Securities as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the caption “Use of
Proceeds”) (i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions
of the charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company
or any subsidiary (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result
in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or any of its subsidiaries.
No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority
or agency, is required for the Company’s execution, delivery and performance of this Agreement, the Pre-Funded Warrants and consummation
of the transactions contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus, except such
as have been obtained or made by the Company and are in full force and effect under the Securities Act and such as may be required under
applicable state securities or blue sky laws or the Financial Industry Regulatory Authority, Inc. (“FINRA”). As
used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice
or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries.
(r) Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations,
except where failure to be so in compliance could not be expected, individually or in the aggregate, to result in a Material Adverse Change.
(s) No
Material Actions or Proceedings. There is no action, suit, proceeding, inquiry or investigation brought by or before any legal
or governmental entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries,
which could be expected, individually or in the aggregate, to result in a Material Adverse Change or materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder. No material
labor dispute with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier, manufacturer,
customer or contractor of the Company, exists or, to the knowledge of the Company, is threatened or imminent.
(t) Intellectual
Property Rights. The Company and its subsidiaries own, or have obtained valid and enforceable licenses for, the inventions, patent
applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in
the Registration Statement, the Time of Sale Prospectus and the Prospectus as being owned or licensed by them or which are necessary for
the conduct of their respective businesses as currently conducted or as currently proposed to be conducted (collectively, “Intellectual
Property”) and the conduct of their respective businesses does not and will not infringe, misappropriate or otherwise conflict
in any material respect with any such rights of others. The Intellectual Property has not been adjudged by a court of competent jurisdiction
to be invalid or unenforceable, in whole or in part, and the Company is unaware of any facts which would form a reasonable basis for any
such adjudication. To the Company's knowledge: (i) there are no third parties who have rights to any Intellectual Property, except
for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus as licensed to the Company or one or more of its subsidiaries; and (ii) there
is no infringement by third parties of any Intellectual Property. There is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging
the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise
violates, or would, upon the commercialization of any product or service described in the Registration Statement, the Time of Sale Prospectus
or the Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret
or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action,
suit, proceeding or claim. 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 any subsidiary, and all such agreements are in full force and effect. To the Company’s
knowledge, there are no material defects in any of the patents or patent applications included in the Intellectual Property. The Company
and its subsidiaries have taken all reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution
of appropriate nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with their employees,
and no employee of the Company is in or has been in violation of any term of any employment contract, patent disclosure agreement, invention
assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement, or any restrictive covenant to or
with a former employer where the basis of such violation relates to such employee’s employment with the Company. The duty of candor
and good faith as required by the United States Patent and Trademark Office during the prosecution of the United States patents and patent
applications included in the Intellectual Property have been complied with; and in all foreign offices having similar requirements, all
such requirements have been complied with. None of the Intellectual Property or technology (including information technology and outsourced
arrangements) employed by the Company or its subsidiaries has been obtained or is being used by the Company or its subsidiary in violation
of any contractual obligation binding on the Company or its subsidiaries or any of their respective officers, directors or employees or
otherwise in violation of the rights of any persons. The product candidates described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus as under development by the Company or any subsidiary fall within the scope of the claims of one or more
patents owned by, or exclusively licensed to, the Company or any subsidiary.
(u) All
Necessary Permits, etc. The Company and its subsidiaries possess such valid and current certificates, authorizations or permits
required by state, federal or foreign regulatory agencies or bodies to conduct their respective businesses as currently conducted and
as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus (“Permits”). Neither the
Company nor any of its subsidiaries is in violation of, or in default under, any of the Permits or has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit.
(v) Title
to Properties. The Company and its subsidiaries have good and marketable title to all of the real and personal property and other
assets reflected as owned in the financial statements referred to in Section 1(j) above (or elsewhere in the Registration Statement,
the Time of Sale Prospectus or the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances,
equities, adverse claims and other defects. The real property, improvements, equipment and personal property held under lease by the Company
or any of its subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company
or such subsidiary.
(w) Tax
Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and payable,
any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 1(j) above
in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or
any of its subsidiaries has not been finally determined.
(x) Insurance.
Each of the Company and its subsidiaries are insured by recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including,
but not limited to, policies covering real and personal property owned or leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes and policies covering the Company and its subsidiaries for product liability claims and
clinical trial liability claims. The Company has no reason to believe that it or any of its subsidiaries will not be able (i) to
renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and at a cost that could not be expected to result in a Material
Adverse Change. Neither the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which
it has applied.
(y) Compliance
with Environmental Laws. Except as could not be expected, individually or in the aggregate, to result in a Material Adverse Change:
(i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”);
(ii) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements; (iii) there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries; and (iv) there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(z) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or any of its subsidiaries,
any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company or
such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each employee benefit plan established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(aa) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Securities or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, required to register as an “investment company” under the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(bb) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the price of the Offered
Shares or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation
M”)) with respect to the Offered Shares, whether to facilitate the sale or resale of the Securities or otherwise, and has taken
no action which would directly or indirectly violate Regulation M.
(cc) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries
or any other person required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus that have not
been described as required.
(dd) FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its counsel, its
officers and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection
with the offering of the Securities is true, complete, correct and compliant with FINRA’s rules and any letters, filings or
other supplemental information provided to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct.
(ee) Parties
to Lock-Up Agreements. The Company has furnished to the Underwriters a letter agreement in the form attached hereto as Exhibit A
(the “Lock-up Agreement”) from each of the persons listed on Exhibit B. Such Exhibit B lists
under an appropriate caption the directors and executive officers of the Company. If any additional persons shall become directors or
executive officers of the Company prior to the end of the Company Lock-up Period (as defined below), the Company shall cause each such
person, prior to or contemporaneously with their appointment or election as a director or executive officer of the Company, to execute
and deliver to the Representatives a Lock-up Agreement.
(ff) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement, the Time
of Sale Prospectus or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable
and accurate. To the extent required, the Company has obtained the written consent to the use of such data from such sources.
(gg) Sarbanes-Oxley
Act. 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 with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(hh) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate
for, any federal, state or foreign office in violation of any law or of the character required to be disclosed in the Registration Statement,
the Time of Sale Prospectus or the Prospectus.
(ii) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor any director, officer, or employee of the Company or
any of its subsidiaries, nor to the knowledge of the Company, any agent, affiliate or other person acting on behalf of the Company or
any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made
or taken any act in furtherance of an offer, promise, or authorization of any direct or indirect unlawful payment or benefit to any foreign
or domestic government official or employee, including of any government-owned or controlled entity or public international organization,
or any political party, party official, or candidate for political office; (iii) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the UK Bribery Act 2010, or any other applicable
anti-bribery or anti-corruption law; or (iv) made, offered, authorized, requested, or taken an act in furtherance of any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit . The Company and its subsidiaries and, to the
knowledge of the Company, the Company’s affiliates have conducted their respective businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(jj) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable
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 best knowledge of the
Company, threatened.
(kk) Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, after due inquiry,
any agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject or the target
of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”)
or the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located,
organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, the Crimea
region, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine (or any other Covered Region of Ukraine
identified pursuant to Executive Order 14065), the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic,
Cuba, Iran, North Korea, and Syria; and the Company will not directly or indirectly use the proceeds of this offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of
financing the activities of or business with any person, or in any country or territory, that at the time of such financing, is the subject
or the target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in
the transaction whether as underwriter, advisor, investor or otherwise) of applicable Sanctions. For the past ten years, the Company and
its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that
at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ll) Brokers.
Except pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage
or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(mm) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus or
the Prospectus (i) was so included by the Company in good faith and with reasonable basis after due consideration by the Company
of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary
statements identifying those factors that could cause actual results to differ materially from those in such forward-looking statement.
No such statement was made with the knowledge of an executive officer or director of the Company that it was false or misleading.
(nn) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of
a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit
as are expressly permitted by Section 13(k) of the Exchange Act.
(oo) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify as “protected
health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information
Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material
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 Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(pp) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take appropriate
steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The
Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory rules or
requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in
violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that
neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential
violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any
such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective
action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability
under any Privacy Law.
(qq) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies (collectively, “studies”)
that are described in, or the results of which are referred to in, the Registration Statement, the Time of Sale Prospectus or the Prospectus
were and, if still pending, are being conducted in all material respects in accordance with the protocols, procedures and controls designed
and approved for such studies and with standard medical and scientific research procedures; each description of the results of such studies
is accurate and complete in all material respects and fairly presents the data derived from such studies, and the Company and its subsidiaries
have no knowledge of any other studies the results of which are inconsistent with, or otherwise call into question, the results described
or referred to in the Registration Statement, the Time of Sale Prospectuses or the Prospectus; the Company and its subsidiaries have made
all such filings and obtained all such approvals as may be required by the Food and Drug Administration of the U.S. Department of Health
and Human Services or any committee thereof or from any other U.S. or foreign government or drug or medical device regulatory agency,
or health care facility Institutional Review Board (collectively, the “Regulatory Agencies”); neither the Company nor
any of its subsidiaries has received any notice of, or correspondence from, any Regulatory Agency requiring the termination, suspension
or modification of any clinical trials that are described or referred to in the Registration Statement, the Time of Sale Prospectus or
the Prospectus; and the Company and its subsidiaries have each operated and currently are in compliance in all material respects with
all applicable rules, regulations and policies of the Regulatory Agencies.
(rr) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all Health Care Laws.
For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301
et seq.), the Public Health Service Act (42 U.S.C. Section 201 et seq.), and the regulations promulgated thereunder; (ii) all
applicable federal, state, local and foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute
(42 U.S.C. Section 1320a-7b(b)), the Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal false statements
law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections 286 and 287, the health care fraud criminal provisions under the U.S. Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d et seq.), the Stark Law (42 U.S.C.
Section 1395nn), the civil monetary penalties law (42 U.S.C. Section 1320a-7a), the exclusion law (42 U.S.C. Section 1320a-7),
the Physician Payments Sunshine Act (42 U.S.C. Section 1320-7h), and applicable laws governing government funded or sponsored healthcare
programs; (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921
et seq.); (iv) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation
Act of 2010; (v) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws
or regulatory bodies; and (vi) all other local, state, federal, national, supranational and foreign laws, relating to the regulation
of the Company or its subsidiaries, and (vii) the directives and regulations promulgated pursuant to such statutes and any state
or non-U.S. counterpart thereof. Neither the Company nor any of its subsidiaries has received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in violation of any Health Care Laws nor, to the Company’s
knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened. The
Company and its subsidiaries have filed, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all material
respects (or were corrected or supplemented by a subsequent submission). Neither the Company nor any of its subsidiaries is a party to
any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by
any governmental or regulatory authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective employees,
officers, directors, or agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or
human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other
similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(ss) No
Contract Terminations. Neither the Company nor any of its subsidiaries has sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to or described in any preliminary prospectus, the Prospectus
or any free writing prospectus, or referred to or described in, or filed as an exhibit to, the Registration Statement, or any document
incorporated by reference therein, and no such termination or non-renewal has been threatened by the Company or any of its subsidiaries
or, to the Company’s knowledge, any other party to any such contract or agreement, which threat of termination or non-renewal has
not been rescinded as of the date hereof.
(tt) Dividend
Restrictions. No subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company,
or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any
other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from
the Company or from transferring any property or assets to the Company or to any other subsidiary.
Any certificate signed by any officer of the Company
or any of its subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering, or the
purchase and sale, of the Securities shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
The Company has a reasonable basis for making each
of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes of the opinions
to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy
and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 2. Purchase,
Sale and Delivery of the Securities.
(a) The
Firm Shares and the Pre-Funded Warrants. Upon the terms herein set forth, the Company agrees to issue and sell to the several
Underwriters an aggregate of 11,250,000 Firm Shares and Pre-Funded Warrants to purchase 3,750,000 shares of Common Stock. On the basis of
the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the respective number of Firm Shares and Pre-Funded Warrants
set forth opposite their names on Schedule A. The purchase price per Firm Share to be paid by the several Underwriters to the Company
shall be $3.76 per share, and the purchase price per Pre-Funded Warrant to be paid by the several Underwriters to the Company shall
be $3.75906.
(b) The
First Closing Date. Delivery of the Firm Shares and the Pre-Funded Warrants to be purchased by the Underwriters and payment therefor
shall be made at the offices of Paul Hastings LLP (or such other place as may be agreed to by the Company and the Representatives) at
9:00 a.m. New York City time, on June 17, 2024, or such other time and date not later than 1:30 p.m. New York City
time, on June 17, 2024 as the Representatives shall designate by notice to the Company (the time and date of such closing are called
the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or
the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions
of Section 11.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 2,250,000 Optional Shares from the Company at the purchase price per share to
be paid by the Underwriters for the Firm Shares, less an amount per share equal to any dividend or distribution declared by the Company
and payable on the Firm Shares but not payable on Optional Shares. The option granted hereunder may be exercised at any time and from
time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days
from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters
are exercising the option and (ii) the time, date and place at which certificates for the Optional Shares will be delivered (which
time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous
with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of certificates
for the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called
an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later
than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of
Firm Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representatives
may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Securities. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the
public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, their respective
portions of the Securities as soon after this Agreement has been executed as the Representatives, in their sole judgment, have determined
is advisable and practicable.
(e) Payment
for the Securities. (i) Payment for the Securities to be sold by the Company shall be made at the First Closing Date (and,
if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It
is understood that the Representatives have been authorized, for their own respective accounts and the accounts of the several Underwriters,
to accept delivery of and receipt for, and make payment of the purchase price for the Firm Shares, the Pre-Funded Warrants and any Optional
Shares the Underwriters have agreed to purchase. Jefferies, individually and not as a Representative of the Underwriters, may (but shall
not be obligated to) make payment for any Securities to be purchased by any Underwriter whose funds shall not have been received by the
Representatives by the First Closing Date or the applicable Option Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery
of the Securities. The Company shall deliver, or cause to be delivered, through the facilities of the Depository Trust Company,
including through the full fast transfer or DWAC programs, unless the Representatives shall otherwise instruct, to the Representatives
for the accounts of the several Underwriters the Firm Shares to be sold by them at the First Closing Date, against release of a wire transfer
of immediately available funds for the amount of the purchase price therefor. The Company shall also deliver, or cause to be delivered,
through the facilities of the Depository Trust Company, including through the full fast transfer or DWAC programs, unless the Representatives
shall otherwise instruct, to the Representatives for the accounts of the several Underwriters the Optional Shares to be sold by them at
the First Closing Date or the applicable Option Closing Date, as the case may be, against release of a wire transfer of immediately available
funds for the amount of the purchase price therefor.
The Pre-Funded Warrants shall be delivered to the
Representatives in definitive form, registered in such names and in such denominations as the Representatives shall request in writing
not later than the First Closing Date. The Pre-Funded Warrants will be made available for inspection by the Representatives on the business
day prior to the First Closing Date.
Notwithstanding the foregoing, the Company and
the Representatives shall instruct purchasers of the Pre-Funded Warrants in the public offering to make payment for the Pre-Funded Warrants
on the First Closing Date to the Company by wire transfer in immediately available funds to the account specified by the Company at a
purchase price of $3.75906 per Pre-Funded Warrant, in lieu of payment by the Underwriters for such Pre-Funded Warrants, and the Company
shall deliver such Pre-Funded Warrants to such purchasers on the First Closing Date in definitive form against such payment, in lieu of
the Company’s obligation to deliver such Warrants to the Underwriters.
In the event that any purchaser of the Pre-Funded
Warrants in the public offering fails to make payment to the Company for all or part of the Pre-Funded Warrants (the “Failed
Warrants”) on the First Closing Date, as the case may be, the Representatives may elect, by written notice to the Company and
payment of the purchase price by wire transfer in immediately available funds to the account specified by the Company at the location
and time designated in this Section 2(f) for the First Closing Date or the Option Closing Date, as the case may be, to receive
shares of Common Stock at the applicable purchase price in lieu of the Failed Warrants that were otherwise to have been delivered to the
purchasers thereof under this Agreement.
Section 3. Additional
Covenants of the Company. The Company further covenants and agrees with each Underwriter as follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period
when a prospectus relating to the Securities is required by the Securities Act to be delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Securities, as many copies of the Time
of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Representatives’
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Securities is required by the
Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule),
the Company (i) will furnish to the Representatives for review, a reasonable period of time prior to the proposed time of filing
of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement and (ii) will
not amend or supplement the Registration Statement (including any amendment or supplement through incorporation of any report filed under
the Exchange Act) without the Representatives’ prior written consent. Prior to amending or supplementing any preliminary prospectus,
the Time of Sale Prospectus or the Prospectus (including any amendment or supplement through incorporation of any report filed under the
Exchange Act), the Company shall furnish to the Representatives for review, a reasonable amount of time prior to the time of filing or
use of the proposed amendment or supplement, a copy of each such proposed amendment or supplement. The Company shall not file or use any
such proposed amendment or supplement without the Representatives’ prior written consent. The Company shall file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant
to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the Representatives for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on
behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Representatives’ prior written consent. The Company shall furnish to each Underwriter,
without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by the Company as such
Underwriter may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Securities (but
in any event if at any time through and including the First Closing Date) there occurred or occurs an event or development as a result
of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict
with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing
at such time, not misleading, the Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such
conflict or so that the statements in such free writing prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at such time, not misleading, as the case may be; provided, however, that prior to amending or supplementing any such
free writing prospectus, the Company shall furnish to the Representatives for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Company shall not file,
use or refer to any such amended or supplemented free writing prospectus without the Representatives’ prior written consent.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Securities
at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a result of which the Time
of Sale Prospectus conflicts with the information contained in the Registration Statement, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company shall (subject to Section 3(b) and
Section 3(c) hereof) promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to
any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus
as so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the information contained in the Registration Statement,
or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement, the Company shall promptly advise the Representatives in
writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the
time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the time and date that any post-effective
amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment or supplement to any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending the use of any preliminary prospectus,
the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from
listing or quotation the Offered Shares from any securities exchange upon which they are listed for trading or included or designated
for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such
stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally,
the Company agrees that it shall comply with all applicable provisions of Rule 424(b), Rule 433 and Rule 430B under the
Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433
were received in a timely manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading, or if in the opinion of the Representatives or counsel for the Underwriters it is otherwise necessary to amend or supplement
the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and Section 3(c)) hereof to promptly
prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the Representatives’
consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under
Section 3(b) or Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the
Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial
securities laws (or other foreign laws) of those jurisdictions designated by the Representatives, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. The Company
shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in
any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company
will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to)
the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and
in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts
to obtain the withdrawal thereof at the earliest possible moment.
(i) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the
manner described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the shares of Common Stock.
(k) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus
and the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period when a prospectus relating to
the Securities is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the
Securities Act or any similar rule), file on a timely basis with the Commission and Nasdaq all reports and documents required to be filed
under the Exchange Act.
(l) Listing.
The Company will use its best efforts to list, subject to notice of issuance, the Offered Shares on Nasdaq.
(m) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Representatives,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Representatives an “electronic Prospectus” to be used by the Underwriters in connection with the offering and
sale of the Securities. As used herein, the term “electronic Prospectus” means a form of Prospectus, and any amendment
or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory
to the Representatives, that may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers
of the Securities; (ii) it shall disclose the same information as the paper Prospectus, except to the extent that graphic and image
material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus
with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be
in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store
and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription
to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed
pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking
that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
(n) Agreement
Not to Offer or Sell Additional Shares. During the period commencing on and including the date hereof and continuing through
and including the 90th day following the date of the Prospectus (such period, as extended as described below, being
referred to herein as the “Lock-up Period”), the Company will not, without the prior written consent of Jefferies
(which consent may be withheld in its sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell or
lend any shares of Common Stock or Related Securities (as defined below); (ii) effect any short sale, or establish or increase
any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease
any “call equivalent position” (as defined in Rule 16a-1(b) under the Exchange Act) of any shares of Common
Stock or Related Securities; (iii) pledge, hypothecate or grant any security interest in any shares of Common Stock or Related
Securities; (iv) in any other way transfer or dispose of any shares of Common Stock or Related Securities; (v) enter into
any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of any
shares of Common Stock or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or
otherwise; (vi) announce the offering of any shares of Common Stock or Related Securities; (vii) submit or file any
registration statement under the Securities Act in respect of any shares of Common Stock or Related Securities (other than as
contemplated by this Agreement with respect to the Securities); (viii) effect a reverse stock split, recapitalization, share
consolidation, reclassification or similar transaction affecting the outstanding shares of Common Stock; or (ix) publicly
announce the intention to do any of the foregoing; provided, however, that the Company may (A) effect the transactions
contemplated hereby, (B) issue and sell, from time to time, its Common Stock pursuant to that certain Open Market Sales
AgreementSM, dated November 14, 2023, by and between the Company and Jefferies LLC, as sales agent, (C) issue
shares of Common Stock or options to purchase shares of Common Stock, or issue shares of Common Stock upon exercise of options,
pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, and (D) issue and sell its Common Stock to security holders of the Company as of the date of this Agreement, in an amount
not to exceed an aggregate of $10.0 million, provided that such Common Stock is sold at no less than the public offering price of the
Offered Shares. For purposes of the foregoing, “Related Securities” shall mean any options or
warrants or other rights to acquire shares of Common Stock or any securities exchangeable or exercisable for or convertible into
shares of Common Stock, or to acquire other securities or rights ultimately exchangeable or exercisable for, or convertible into,
shares of Common Stock.
(o) Future
Reports to the Representatives. During the period of five years hereafter, the Company will furnish to the Representatives, c/o
Jefferies LLC, at 520 Madison Avenue, New York, New York 10022, Attention: Global Head of Syndicate and c/o Cantor Fitzgerald &
Co., 110 E. 59th Street, 6th Floor, New York, New York 10022, to the attention of Capital Markets: (i) as soon
as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company
as of the close of such fiscal year and statements of operations, stockholders’ equity and cash flows for the year then ended and
the opinion thereon of the Company’s independent public or certified public accountants; (ii) as soon as practicable after
the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report
on Form 8-K or other report filed by the Company with the Commission, FINRA or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company furnished or made available generally to holders of its capital stock;
provided, however, that the requirements of this Section 3(o) shall be satisfied to the extent that such reports, statement,
communications, financial statements or other documents are available on EDGAR.
(p) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities
in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company
Act.
(q) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate of the
Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the
price of the shares of Common Stock or any reference security with respect to the shares of Common Stock, whether to facilitate the sale
or resale of the Securities or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable
provisions of Regulation M.
(r) Warrant
Shares Reserved. The Company shall, at all times while any Pre-Funded Warrants
are outstanding, reserve and keep available out of its authorized but unissued and otherwise unreserved shares of Common Stock, solely
for the purpose of enabling it to issue Warrant Shares upon exercise of such Pre-Funded Warrants, the number of Warrant Shares
that are initially issuable and deliverable upon the exercise of the then-outstanding Pre-Funded Warrants.
Section 4. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to
the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the shares of Common Stock, (iii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities to the Underwriters, (iv) all fees and expenses of the Company’s counsel, independent public
or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared by or on behalf of, used by, or referred
to by the Company, and each preliminary prospectus, and all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities
or blue sky laws, and, if requested by the Representatives, preparing and printing a “Blue Sky Survey” or memorandum and a
“Canadian wrapper”, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions,
(vii) the costs, fees and expenses incurred by the Underwriters in connection with determining their compliance with the rules and
regulations of FINRA related to the Underwriters’ participation in the offering and distribution of the Securities, including any
related filing fees and the legal fees of, and disbursements by, counsel to the Underwriters, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show”, including, without limitation, expenses associated with
the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives, employees and officers of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, (ix) the fees and expenses associated with listing the Offered Shares on Nasdaq, (x) the
costs of reproducing and distributing each of the Pre-Funded Warrants and (xi) all other fees, costs and expenses of the nature referred
to in Item 14 of Part II of the Registration Statement. Except as provided in this Section 4 or in Section 7,
Section 9 or Section 10 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Covenant
of the Underwriters. Each Underwriter severally and not jointly covenants with the Company not to take any action that would result
in the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under
Rule 433(d).
Section 6. Conditions
of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay for the
Securities as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject
to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of
the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each Option Closing
Date as though then made, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Comfort
Letters. On the date hereof, the Representatives shall have received from each of Grant Thornton LLP and Plante & Moran,
PLLC, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form
and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant’s
“comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin),
with respect to certain unaudited financial statements, in the case of Grant Thornton LLP, and certain audited and unaudited financial
statements, in the case of Plante & Moran PPLC, as well as certain financial information contained in the Registration Statement,
the Time of Sale Prospectus, and each free writing prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each
Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement
pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under
the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information
previously omitted from the Registration Statement pursuant to such Rule 430B, and such post-effective amendment shall have become
effective.
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall
be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) If
a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and
arrangements.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and through and including
the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option Closing Date:
(i) in
the judgment of the Representatives there shall not have occurred any Material Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act.
(d) Opinion
of Counsel for the Company. On each of the First Closing Date and each Option Closing Date, the Representatives shall have received
the opinion and negative assurance letter of Dorsey & Whitney LLP, counsel for the Company, dated as of such date, in form and
substance satisfactory to the Representatives.
(e) Opinion
of Intellectual Property Counsel for the Company. On each of the First Closing Date and each Option Closing Date, the Representatives
shall have received the opinion of each of Marshall, Gerstein & Borun LLP and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., counsels for the Company with respect to intellectual property, dated as of such date, in form and substance satisfactory to the
Representatives.
(f) Opinion
of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing Date, the Representatives shall have
received the opinion and negative assurance letter of Paul Hastings LLP, counsel for the Underwriters in connection with the offer and
sale of the Securities, in form and substance satisfactory to the Underwriters, dated as of such date, with executed copies for each of
the other Underwriters named on the Prospectus cover page.
(g) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, the Representatives shall have received a certificate
executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of such date,
to the effect set forth in Section 6(b)(ii) and further to the effect that:
(i) for
the period from and including the date of this Agreement through and including such date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to such date.
(h) Bring-down
Comfort Letters. On each of the First Closing Date and each Option Closing Date, the Representatives shall have received from
each of Grant Thornton LLP and Plante & Moran, PLLC, independent registered public accountants for the Company, a letter dated
such date, in form and substance satisfactory to the Representatives, which letter shall: (i) reaffirm the respective statements
made in the letter furnished by them pursuant to Section 6, except that the specified date referred to therein for the carrying out
of procedures shall be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the
case may be; and (ii) cover certain financial information contained in the Prospectus.
(i) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Representatives an agreement in the form of
Exhibit A hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall be in full
force and effect on the First Closing Date and each Option Closing Date.
(j) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated
by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this Agreement
and shall have become effective automatically upon such filing.
(k) CFO
Certificate. On the date of this Agreement and on the First Closing Date or the applicable Option Closing Date, as the case may
be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed
to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Time of Sale Prospectus and
the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory
to the Representatives.
(l) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling
them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as contemplated herein and in connection with the other transactions contemplated
by this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(m) Form of
Warrants. On each of the First Closing Date and each Option Closing Date, the Pre-Funded Warrants shall be delivered to those
persons and entities as directed by the Representatives in form and substance as set forth on Exhibit C hereto, dated as of
such date.
If any condition specified in this Section 6
is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company
at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any time on or prior to the applicable
Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 4,
Section 7, Section 9 and Section 10 shall at all times be effective and shall survive such termination.
Section 7. Reimbursement
of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to Section 6, Section 11
or Section 12, or if the sale to the Underwriters of the Securities on the First Closing Date is not consummated because
of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement
with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives
and the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including, but not limited
to, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 8. Effectiveness
of this Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a) Indemnification
of the Underwriters. The Company agree to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, employees
and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate, director, officer, employee,
agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation,
or the laws or regulations of foreign jurisdictions where Securities have been offered or sold or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;
or (ii) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act, any Marketing Material or the Prospectus (or any amendment or supplement to the foregoing), or the omission or alleged
omission to state therein a material fact necessary in order to make the statements, in the light of the circumstances under which they
were made, not misleading; or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection
with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to
in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii) above;
and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent and controlling person for any and all expenses
(including the fees and disbursements of counsel) as such expenses are incurred by such Underwriter or such affiliate, director, officer,
employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with information relating to any Underwriter furnished
to the Company by the Representatives in writing expressly for use in the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, any such free writing prospectus, any Marketing Material or the Prospectus (or any amendment or supplement thereto),
it being understood and agreed that the only such information consists of the information described in Section 9(b) below.
The indemnity agreement set forth in this Section 9(a) shall be in addition to any liabilities that the Company may otherwise
have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred,
to which the Company, or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act,
or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, or any amendment thereto, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433 of the Securities Act or the Prospectus
(or any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement,
such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus or the Prospectus (or any such amendment or supplement),
in reliance upon and in conformity with information relating to such Underwriter furnished to the Company by the Representatives in writing
expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any and all expenses
(including the fees and disbursements of counsel) as such expenses are incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The Company hereby acknowledges that the only information that the Representatives have furnished to the Company expressly
for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement
to the foregoing) are the statements set forth in the first sentence of the third paragraph; the fourth paragraph; the first two sentences
of the first paragraph under the section entitled “Commission and Expenses”; the first sentence of the first paragraph, the
third sentence of the second paragraph and the first sentence of the sixth paragraph under the section entitled “Stabilization”;
and the first and fourth sentences under the section entitled “Electronic Distribution” each under the caption “Underwriting”
in the Time of Sale Prospectus. The indemnity agreement set forth in this Section 9(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 9 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 9, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the
indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party to the extent
the indemnifying party is not materially prejudiced as a proximate result of such failure and shall not in any event relieve the indemnifying
party from any liability that it may have otherwise than on account of this indemnity agreement. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume
the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such
action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such indemnifying party’s election to so assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence
(it being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel
(together with local counsel), representing the indemnified parties who are parties to such action), which counsel (together with any
local counsel) for the indemnified parties shall be selected by the Representatives (in the case of counsel for the indemnified parties
referred to in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in Section 9(b) above))
or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing
the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit
or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder
by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and does not include an admission of fault or culpability
or a failure to act by or on behalf of such indemnified party.
Section 10. Contribution.
If the indemnification provided for in Section 9 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant
to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the Company, and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering
price of the Securities as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other
hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters,
on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set
forth in Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 9(c) with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this Section 10; provided, however, that no additional
notice shall be required with respect to any action for which notice has been given under Section 9(c) for purposes of
indemnification.
The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 10.
Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to
this Section 10 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite
their respective names on Schedule A. For purposes of this Section 10, each affiliate, director, officer, employee
and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company.
Section 11. Default
of One or More of the Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more of the
several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed
10% of the aggregate number of the Securities to be purchased on such date, the Representatives may make arrangements satisfactory to
the Company for the purchase of such Securities by other persons, including any of the Underwriters, but if no such arrangements are made
by such date, the other Underwriters shall be obligated, severally and not jointly, in the proportions that the number of Firm Shares
and Pre-Funded Warrants set forth opposite their respective names on Schedule A bears to the aggregate number of Firm Shares and
Pre-Funded Warrants set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified
by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date. If, on the First Closing Date or any Option Closing Date any one
or more of the Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such
default occurs exceeds 10% of the aggregate number of Securities to be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Section 4, Section 7, Section 9
and Section 10 shall at all times be effective and shall survive such termination. In any such case either the Representatives
or the Company shall have the right to postpone the First Closing Date or the applicable Option Closing Date, as the case may be, but
in no event for longer than seven days in order that the required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section 11. Any action taken under
this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 12. Termination
of this Agreement. Prior to the purchase of the Securities by the Underwriters on the First Closing Date, this Agreement may
be terminated by the Representatives by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by Nasdaq, or trading in securities generally on either Nasdaq or
the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock
exchanges; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there
shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the
United States or international financial markets, or any substantial change or development involving a prospective substantial change
in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is material
and adverse and makes it impracticable to market the Securities in the manner and on the terms described in the Time of Sale Prospectus
or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident
or other calamity of such character as in the judgment of the Representatives may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss shall have been insured. Any termination pursuant to this Section 12
shall be without liability on the part of (a) the Company to any Underwriter, except that the Company shall be obligated to reimburse
the expenses of the Representatives and the Underwriters pursuant to Section 4 or Section 7 hereof
or (b) any Underwriter to the Company; provided, however, that the provisions of Section 9 and Section 10
shall at all times be effective and shall survive such termination.
Section 13. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand,
(b) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has
been acting solely as a principal and is not the agent or fiduciary of the Company, or the Company’s stockholders, or its creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, (e) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate, and (f) none of
the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice,
or solicitation of any action by the Underwriters with respect to any entity or natural person.
Section 14. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or their partners, officers
or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery
of and payment for the Securities sold hereunder and any termination of this Agreement.
Section 15. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto
as follows:
| If to the Representatives: |
Jefferies LLC |
| |
520 Madison Avenue |
| |
New York, New York 10022 |
| |
Attention: General Counsel |
| |
|
| |
Cantor Fitzgerald & Co. |
| |
110 E. 59th Street, 6th Floor |
| |
New York, New York 10022 |
| |
Attention: Capital Markets |
| |
|
| with a copy to: |
Paul Hastings LLP |
| |
MetLife Building, 200 Park Avenue |
| |
New York, New York 10166 |
| |
Attention: Siavosh Salimi and William A. Magioncalda |
| |
|
| If to the Company: |
Rezolute, Inc. |
| |
275 Shoreline Drive, Suite 500 |
| |
Redwood City, California 94065 |
| |
Telephone: 650-206-4507 |
| |
Attention: Nevan Elam, Chief Executive Officer |
| |
|
| with a copy to: |
Dorsey & Whitney LLP |
| |
1400 Wewatta Street, Suite 400 |
| |
Denver, Colorado 80202 |
| |
Attention: Anthony W. Epps |
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to
Section 11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons
referred to in Section 9 and Section 10, and in each case their respective successors, and personal
representatives, and no other person will have any right or obligation hereunder. The term “successors” shall not include
any purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
Section 17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 19. Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts
of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
Section 20. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it
is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 9 and the contribution provisions of Section 10, and
is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 9
and Section 10 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus,
the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as
contemplated by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
REZOLUTE, INC. |
| |
|
| |
|
| |
By: |
/s/ Nevan Charles Elam |
| |
|
Name: Nevan Charles Elam |
| |
|
Title: Chief Executive Officer |
The foregoing Underwriting Agreement is hereby
confirmed and accepted by the Representatives in New York, New York as of the date first above written.
| JEFFERIES LLC |
|
| CANTOR FITZGERALD & CO. |
|
| |
|
| Acting individually and as Representatives |
|
| of the several Underwriters named in |
|
| the attached Schedule A. |
|
| |
|
| JEFFERIES LLC |
|
| |
|
| |
|
| By: |
/s/ Michael Brinkman |
|
| |
Name: Michael Brinkman |
|
| |
Title: Managing Director |
|
| |
|
| CANTOR FITZGERALD & CO. |
|
| |
|
| |
|
| By: |
/s/ Asif Ahmed |
|
| |
Name: Asif Ahmed |
|
| |
Title: Managing Director - Co-Head of ECM |
|
Schedule A
| |
|
|
|
Number of |
| |
|
Number of |
|
Pre-Funded |
| |
|
Firm Shares |
|
Warrants |
| Underwriters |
|
to
be Purchased |
|
to
be Purchased |
| Jefferies LLC |
|
5,765,625 |
|
1,921,875 |
| Cantor Fitzgerald & Co. |
|
2,953,125 |
|
984,375 |
| BTIG, LLC |
|
506,250 |
|
168,750 |
| Craig-Hallum Capital Group LLC |
|
506,250 |
|
168,750 |
| H.C. Wainwright & Co., LLC |
|
506,250 |
|
168,750 |
| JonesTrading Institutional Services LLC |
|
506,250 |
|
168,750 |
| Maxim Group LLC |
|
506,250 |
|
168,750 |
| |
|
|
|
|
| Total |
|
11,250,000 |
|
3,750,000 |
Schedule B
Free Writing Prospectuses Included in the
Time of Sale Prospectus
None.
Exhibit A
Form of Lock-up Agreement
Exhibit B
Directors and Executive
Officers
Signing Lock-up Agreement
Exhibit C
Form of Pre-Funded Warrant
Included on Exhibit 4.1 to this Current Report on Form 8-K
Exhibit 4.1
FORM OF PRE-FUNDED WARRANT TO PURCHASE
COMMON STOCK
Number of Shares: [ ]
(subject to adjustment)
Warrant No.
Rezolute, Inc., a Nevada corporation (the “Company”),
hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [ ] or its
registered assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company
up to a total of [ ] shares of common stock, $0.001 par value per share (the “Common Stock”), of the Company (each
such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise price per
share equal to $0.001 per share (as adjusted from time to time as provided in Section 9 herein, the “Exercise
Price”), upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase
Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time
to time on or after the date hereof (the “Original Issue Date”), subject to the following terms and conditions:
1. Definitions. For purposes of this Warrant, the following
terms shall have the following meanings:
(a) “Affiliate” means any Person directly
or indirectly controlled by, controlling or under common control with, a Holder, but only for so long as such control shall continue.
For purposes of this definition, “control” (including, with correlative meanings, “controlled by”, “controlling”
and “under common control with”) means, with respect to a Person, possession, direct or indirect, of (a) the power to
direct or cause direction of the management and policies of such Person (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), or (b) at least 50% of the voting securities (whether directly or pursuant to any
option, warrant or other similar arrangement) or other comparable equity interests.
(b) “Commission” means the United States Securities
and Exchange Commission.
(c) “Closing Sale Price” means, for any security
as of any date, the last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg Financial
Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price,
then the last trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if
the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for
such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be calculated for a security on a particular
date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined
by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the
Board of Directors of the Company shall use its good faith judgment to determine the fair market value. The Board of Directors’
determination shall be binding upon all parties absent demonstrable error. All such determinations shall be appropriately adjusted for
any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.
(d) “Principal Trading Market” means the national
securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the
Original Issue Date, shall be the Nasdaq Capital Market.
(e) “Registration Statement” means the Company’s
Registration Statement on Form S-3 (File No. 333-275562), declared effective on November 29, 2023.
(f) “Securities Act” means the Securities
Act of 1933, as amended.
(g) “Trading Day” means any weekday on which
the Principal Trading Market is normally open for trading.
(h) “Transfer Agent” means Issuer Direct Corporation,
the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.
2. Issuance of Securities; Registration of Warrants. The
Warrant, as initially issued by the Company, is offered and sold pursuant to the Registration Statement. As of the Original Issue Date,
the Warrant Shares are issuable under the Registration Statement. Accordingly, the Warrant and, assuming issuance pursuant to the Registration
Statement or an exchange meeting the requirements of Section 3(a)(9) of the Exchange Act as in effect on the Original Issue
Date, the Warrant Shares, are not “restricted securities” under Rule 144 promulgated under the Securities Act. The Company
shall register ownership of this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this Warrant is
assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof
for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. Subject to compliance with
all applicable securities laws, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of
this Warrant in the Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if any). Upon any
such registration or transfer, a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant,
a “New Warrant”) evidencing the portion of this Warrant so transferred shall be issued to the transferee, and a New
Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations
in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent to,
prepare, issue and deliver at the Company’s own expense any New Warrant under this Section 3. Until due presentment
for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for all purposes, and the Company
shall not be affected by any notice to the contrary.
4. Exercise and Duration of Warrants.
(a) All or any part of this Warrant shall be exercisable by the
registered Holder in any manner permitted by this Warrant at any time and from time to time on or after the Original Issue Date.
(b) The Holder may exercise this Warrant by delivering to the
Company (i) an exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”),
completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being
exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 10 below),
and the date on which the last of such items is delivered to the Company (as determined in accordance with the notice provisions hereof)
is an “Exercise Date.” The Holder shall not be required to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance
of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any. The aggregate exercise price of this
Warrant, except for the Exercise Price, was pre-funded to the Company on or before the Original Issue Date, and consequently no additional
consideration (other than the Exercise Price) shall be required by to be paid by the Holder to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-funded exercise price under any circumstance
or for any reason whatsoever.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly
(but in no event later than two (2) Trading Days after the Exercise Date), upon the request of the Holder, credit such aggregate
number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s
balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system,
or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program (the “FAST Program”)
or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier
to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the
Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. The Holder,
or any natural person or legal entity (each, a “Person”) so designated by the Holder to receive Warrant Shares, shall be
deemed to have become the holder of record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares
are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case
may be.
(b) If by the close of the first (1st) Trading Day
after the Exercise Date, the Company fails to deliver to the Holder a certificate representing the required number of Warrant Shares
in the manner required pursuant to Section 5(a) or fails to credit the Holder’s balance account with DTC
for such number of Warrant Shares to which the Holder is entitled, and if after such first (1st) Trading Day and prior to the receipt
of such Warrant Shares, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall, within two (2) Trading Days after the Holder’s request and in the Holder’s sole discretion,
either (1) pay in cash to the Holder an amount equal to the Holder’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased, at which point the Company’s obligation to deliver such certificate (and to
issue such Warrant Shares) shall terminate or (2) promptly honor its obligation to deliver to the Holder a certificate or certificates
representing such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of Holder’s total purchase
price (including brokerage commissions, if any) for the shares of Common Stock so purchased in the Buy-In over the product of (A) the
number of shares of Common Stock purchased in the Buy-In, times (B) the Closing Sale Price of a share of Common Stock on the Exercise
Date.
(c) To the extent permitted by law and subject to Section 5(b),
the Company’s obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof (including the
limitations set forth in Section 11 below) are absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance that might otherwise limit such obligation of the Company to the Holder
in connection with the issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right
to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery
of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, transfer agent fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall
not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any certificates for Warrant
Shares or the Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all other
tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof,
or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction (in such case) and, in each case, a customary and reasonable indemnity and surety bond, if requested
by the Company. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures
and pay such other reasonable third-party costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation
of this Warrant, then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s
obligation to issue the New Warrant.
8. Reservation of Warrant Shares. The Company covenants
that it will, at all times while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized but unissued
and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as
herein provided, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of this entire Warrant, free
from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments
and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon
issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued
and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities
exchange or automated quotation system upon which the Common Stock may be listed. The Company further covenants that it will not, without
the prior written consent of the Holder, take any actions to increase the par value of the Common Stock at any time while this Warrant
is outstanding.
9. Certain Adjustments. The Exercise Price and number
of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9.
(a) Stock Dividends and Splits. If the Company, at any
time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class
of capital stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue
Date or as amended, as described in the Registration Statement, that is payable in shares of Common Stock, (ii) subdivides its outstanding
shares of Common Stock into a larger number of shares of Common Stock, (iii) combines its outstanding shares of Common Stock into
a smaller number of shares of Common Stock or (iv) issues by reclassification of shares of capital stock any additional shares of
Common Stock of the Company, then in each such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding immediately before such event and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall
become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution,
provided, however, that if such record date shall have been fixed and such dividend is not fully paid on the date fixed therefor, the
Exercise Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Exercise Price shall
be adjusted pursuant to this paragraph as of the time of actual payment of such dividends. Any adjustment pursuant to clause (ii) or
(iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time
while this Warrant is outstanding, distributes to all holders of Common Stock for no consideration (i) evidences of its indebtedness,
(ii) any security (other than a distribution of Common Stock covered by the preceding paragraph) or (iii) rights or warrants
to subscribe for or purchase any security, or (iv) cash or any other asset (in each case, “Distributed Property”),
then, upon any exercise of this Warrant that occurs after the record date fixed for determination of stockholders entitled to receive
such distribution, the Holder shall be entitled to receive, in addition to the Warrant Shares otherwise issuable upon such exercise (if
applicable), the Distributed Property that such Holder would have been entitled to receive in respect of such number of Warrant Shares
had the Holder been the record holder of such Warrant Shares immediately prior to such record date without regard to any limitation on
exercise contained therein.
(c) Fundamental Transactions. If, at any time while this
Warrant is outstanding (i) the Company effects any merger or consolidation of the Company with or into another Person, in which
the Company is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation
do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation,
(ii) the Company effects any sale to another Person of all or substantially all of its assets in one transaction or a series of
related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person), holders of
capital stock tender shares representing more than 50% of the voting power of the capital stock of the Company and the Company or such
other Person, as applicable, accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person
whereby such other Person acquires more than the 50% of the voting power of the capital stock of the Company (except for any such transaction
in which the stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting
power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or
property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above)
(in any such case, a “Fundamental Transaction”), then following such Fundamental Transaction the Holder shall have
the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the
holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations on exercise
contained herein (the “Alternate Consideration”). The Company shall not effect any Fundamental Transaction in which
the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate
Consideration is solely cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below
or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person
(including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration
as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant.
The provisions of this paragraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type.
(d) Number of Warrant Shares. Simultaneously with any
adjustment to the Exercise Price pursuant to Section 9, the number of Warrant Shares that may be purchased upon exercise
of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder
for the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior
to such adjustment.
(e) Calculations. All calculations under this Section 9 shall
be made to the nearest one-tenth of one cent or the nearest share, as applicable.
(f) Notice of Adjustments. Upon the occurrence of each
adjustment pursuant to this Section 9, the Company at its expense will, at the written request of the Holder, promptly
compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon
exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder
and to the Company’s transfer agent.
(g) Notice of Corporate Events. If, while this Warrant
is outstanding, the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of
its Common Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of
the Company or any subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval
for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company,
then, except if such notice and the contents thereof shall be deemed to constitute material non-public information, the Company shall
deliver to the Holder a notice of such transaction at least ten (10) days prior to the applicable record or effective date on which
a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction; provided, however,
that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described
in such notice. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any agreement contemplating
or solicits stockholder approval for any Fundamental Transaction contemplated by Section 9(c), other than a Fundamental
Transaction under clause (iii) of Section 9(c), the Company shall deliver to the Holder a notice of such Fundamental Transaction
at least thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees to maintain any information disclosed
pursuant to this Section 9(g) in confidence until such information is publicly available, and shall comply with applicable
law with respect to trading in the Company’s securities following receipt any such information.
10. Payment of Exercise Price. Notwithstanding anything
contained herein to the contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a
“cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of
securities effected pursuant to Section 3(a)(9) of the Securities Act, as determined as follows:
X = Y [(A-B)/A]
where:
“X” equals the number of Warrant Shares to be issued to
the Holder;
“Y” equals the total number of Warrant Shares with respect
to which this Warrant is then being exercised;
“A” equals the Closing Sale Prices of the shares of Common
Stock (as reported by Bloomberg Financial Markets) as of the Trading Day on the date immediately preceding the Exercise Date; and
“B” equals the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
For purposes of Rule 144 promulgated under the Securities Act,
it is intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be
deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date
this Warrant was originally issued (provided that the Commission continues to take the position that such treatment is proper at the
time of such exercise). In the event that the Registration Statement or another registration statement registering the issuance of Warrant
Shares is, for any reason, not effective at the time of exercise of this Warrant, then the Warrant may only be exercised through a cashless
exercise, as set forth in this Section 10. Except as set forth in Section 5(b) (Buy-In remedy) and Section 12 (payment
of cash in lieu of fractional shares), in no event will the exercise of this Warrant be settled in cash.
11. Limitations on Exercise.
(a) Notwithstanding anything to the contrary herein, the Company
shall not effect any exercise of this Warrant, and the holder shall not be entitled to exercise this Warrant for a number of Warrant
Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to such exercise, would cause (i) the
aggregate number of shares of Common Stock beneficially owned by the Holder, its Affiliates and any Persons who are members of a Section 13(d) group
with such Holder or its Affiliates to exceed [4.99%/9.99%/19.99%] (the “Maximum Percentage”) of the total number of issued
and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities
of the Company beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group
with such Holder or its Affiliates to exceed the Maximum Percentage of the combined voting power of all of the securities of the Company
then outstanding following such exercise. For purposes of this paragraph, beneficial ownership and whether a holder is a member of a
Section 13(d) group shall be calculated and determined in accordance with Section 13(d) of the Exchange Act and the
rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, filed with the Commission prior to the date hereof,
(y) a more recent public announcement by the Company or (z) any other notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within three (3) Trading
Days confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder since the date as of which such number of outstanding shares of Common Stock was reported. By written
notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage specified
not in excess of 19.99% specified in such notice; provided that any such increase will not be effective until the sixty-first (61st)
day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common
Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons who are members of a Section 13(d) group
with such Holder or its Affiliates shall include the shares of Common Stock issuable upon: (x) the exercise of this Warrant with
respect to which such determination is being made plus the remaining unexercised and non-cancelled portion of this Warrant but taking
into account the limitations on exercise contained herein, but shall exclude the number of shares of Common Stock which would otherwise
be issuable upon exercise of the remaining unexercised and non-cancelled portion of this Warrant but for the limitations on exercise
contained herein; and (y) the exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities
of the Company beneficially owned by the Holder or any of its Affiliates and other Persons who are members of a Section 13(d) group
with such Holder or its Affiliates that do not have voting power (including without limitation any securities of the Company 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), but shall exclude any such securities subject to any further limitation on conversion or exercise
analogous to the limitation contained herein.
(b) This Section 11 shall not restrict
the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or
other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of
this Warrant.
12. No Fractional Shares. No fractional Warrant Shares
will be issued in connection with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable, the
number of Warrant Shares to be issued shall be rounded down to the next whole number and the Company shall pay the Holder in cash the
fair market value (based on the Closing Sale Price) for any such fractional shares.
13. Notices. Any and all notices or other communications
or deliveries hereunder (including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or confirmed e-mail
at the facsimile number or e-mail address specified in the books and records of the Transfer Agent prior to 5:30 P.M., New York City
time, on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via
facsimile or confirmed e-mail at the facsimile number or e-mail address specified in the books and records of the Transfer Agent on a
day that is not a Trading Day or later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day following the
date of mailing, if sent by nationally recognized overnight courier service specifying next business day delivery, or (iv) upon
actual receipt by the Person to whom such notice is required to be given, if by hand delivery.
14. Warrant Agent. The Company shall initially serve as
warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially
all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further
act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail,
postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
15. Miscellaneous.
(a) No Rights as a Stockholder. The Holder, solely in
such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder
of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder,
solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right
to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation,
merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior
to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant.
In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities
(upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors of the Company.
(b) Authorized Shares. (i) Except and to the extent
as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
or articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof
as may be necessary to enable the Company to perform its obligations under this Warrant.
(ii) Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(c) Successors and Assigns. Subject to compliance with
applicable securities laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company without the written
consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to
the benefit of the Company and the Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause
of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and
assigns.
(d) Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company has obtained the written consent of the Holder.
(e) Acceptance. Receipt of this Warrant by the Holder
shall constitute acceptance of and agreement to all of the terms and conditions contained herein.
(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER
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 SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT. EACH
OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH
SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY)
TO SUCH PERSON AT THE ADDRESS IN EFFECT FOR NOTICES TO IT 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 MANNER PERMITTED
BY LAW. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(g) Headings. The headings herein are for convenience
only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
(h) Severability. In case any one or more of the provisions
of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby, and the Company and the Holder will attempt in good faith to agree
upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
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REZOLUTE, INC. |
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By: |
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Name: Daron Evans |
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Title: Chief Financial Officer |
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Countersigned & Registered: |
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| By |
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Authorized Signature –
Direct Transfer |
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Raleigh, NC • (919) 481
4000 |
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SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares
of Common Stock under the Warrant]
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. __ (the
“Warrant”) issued by Rezolute, Inc., a Nevada corporation (the “Company”). Capitalized terms
used herein and not otherwise defined herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase Warrant
Shares pursuant to the Warrant.
(3) The Holder intends that payment of the Exercise Price shall
be made as (check one):
| |
¨ |
“Cashless
Exercise” under Section 10 of the Warrant |
(4) If the Holder has elected a Cash Exercise, the Holder shall
pay the sum of $ in immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver
to the Holder Warrant Shares determined in accordance with the terms of the Warrant.
(6) By its delivery of this Exercise Notice, the undersigned
represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in
excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act
of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.
| Dated: |
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| Name
of Holder: |
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| By: |
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| Name: |
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| Title: |
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(Signature must conform in all respects to name of Holder as specified
on the face of the Warrant)
Exhibit 5.1
June 14, 2024
Rezolute, Inc.
275 Shoreline Drive, Suite 500
Redwood City, CA 94065
Re: Registration
Statement on Form S-3 (File No. 333-275562)
Ladies and Gentlemen:
We have acted as counsel
to Rezolute, Inc., a Nevada corporation (the “Company”), in connection with Company’s offering of an
aggregate of (i) 13,500,000 shares (the “Offered Shares”) of the Company’s common stock, par value
$0.001 per share (the “Common Stock”) and (ii) pre-funded warrants (the “Pre-Funded
Warrants”) exercisable for 3,750,000 shares of Common Stock (the “Pre-Funded Warrant Shares”) to be
sold pursuant to the Underwriting Agreement, dated June 13, 2024 (the “Underwriting Agreement”) by and
among the Company and Jefferies LLC, as representative of the several underwriters listed on therein (the
“Underwriters”) relating to a registered direct offering (the “Offering”). The Offered Shares
and the Pre-Funded Warrants to be sold by the Company are collectively referred to as the “Securities.” The
Securities are being offered pursuant to a Registration Statement on Form S-3 (Registration No. 333-275562) (the
“Registration Statement”), filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Act”), and the prospectus
included in the Registration Statement (the “Base Prospectus”), and a prospectus supplement thereto dated
June 13, 2024 (the “Prospectus Supplement” and together with the Base Prospectus, the
“Prospectus”). Except as otherwise provided herein, capitalized terms used herein but not otherwise defined
herein shall have the meanings set forth in the Underwriting Agreement.
We have examined such documents
and have reviewed such questions of law as we have considered necessary or appropriate for the purposes of our opinions set forth below.
In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness
of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal
capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to our opinions, we have relied upon
certificates or comparable documents of officers and other representatives of the Company and of public officials.
Based on the foregoing, we
are of the opinion that:
| 1. | The Offered Shares, when issued and delivered against payment of the consideration therefor specified
in the Underwriting Agreement, will be validly issued, fully paid and non-assessable. |
| 2. | The Pre-Funded Warrants when issued and
delivered against payment of the consideration therefor specified in the Underwriting Agreement,
will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms. |
1400 Wewatta Street | Suite 400 | Denver,
CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com
| 3. | The Pre-Funded Warrant Shares into which
the Pre-Funded Warrants are initially convertible, when issued and delivered upon exercise
of the Pre-Funded Warrants in accordance with their terms, will be validly issued, fully
paid and non-assessable. |
Our opinions set forth above
are subject to the following qualifications and exceptions:
| (a) | Our opinion set forth in paragraph 2 above
is subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law relating to or affecting creditors’ rights generally (including, without
limitation, fraudulent conveyance laws). |
| (b) | Our opinion set forth in paragraph 2 above
is subject to the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief, regardless of whether considered in a proceeding
in equity or at law. |
| (c) | Our opinion set forth in paragraph 2 above
is subject to limitations regarding the availability of indemnification and contribution
where such indemnification or contribution may be limited by applicable law or the application
of principles of public policy. |
| (d) | We express no opinion as to the enforceability
of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction
(including, without limitation, any express or implied waiver of any objection to venue in
any court or of any objection that a court is an inconvenient forum) to the extent that the
validity, binding effect or enforceability of any such provision is to be determined by any
court other than a state court of the State of New York, (ii) waivers by the Company
of any statutory or constitutional rights or remedies, (iii) terms which excuse any
person or entity from liability for, or require the Company to indemnify such person or entity
against, such person’s or entity’s negligence or willful misconduct or (iv) obligations
to pay any prepayment premium, default interest rate, early termination fee or other form
of liquidated damages, if the payment of such premium, interest rate, fee or damages may
be construed as unreasonable in relation to actual damages or disproportionate to actual
damages suffered as a result of such prepayment, default or termination. |
| (e) | We draw your attention to the fact that,
under certain circumstances, the enforceability of terms to the effect that provisions may
not be waived or modified except in writing may be limited. |
Our opinions expressed above
are limited to the laws of the State of New York and the Chapter 78 of the Nevada Revised Statutes.
We hereby consent to the
filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company with the Commission on the date
hereof, which Current Report on Form 8-K will be incorporated by reference into the Registration Statement, and to the reference
to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of
the Commission thereunder.
| |
Very truly yours, |
| |
/s/ Dorsey & Whitney LLP |
AWE/DMM/JKB
Exhibit 99.1
Rezolute Announces
Pricing of Public Offering of $60 Million of Common Stock and Pre-Funded Warrants
NEW YORK--(BUSINESS WIRE)--Jun. 13, 2024-- Rezolute,
Inc. (Nasdaq: RZLT) (“Rezolute” or the “Company”), a late-stage biopharmaceutical company committed to developing
novel, transformative therapies for serious rare diseases, today announced the pricing of its previously announced underwritten public
offering of an aggregate of 11,250,000 shares of its common stock at an offering price of $4.00 per share, and, to certain investors in
lieu of common stock, pre-funded warrants to purchase up to 3,750,000 shares of common stock at an offering price of $3.999 per pre-funded
warrant, which represents the per share offering price for the common stock less the $0.001 per share exercise price for each pre-funded
warrant. Gross proceeds from the underwritten public offering before deducting underwriting discounts and commissions and other offering
expenses are expected to be approximately $60 million.
All shares of common stock and pre-funded warrants
to be sold in the offering will be offered by Rezolute. The closing of the offering is expected to occur on or about June 17, 2024, subject
to the satisfaction of customary closing conditions.
Jefferies and Cantor are acting as the joint
book-running managers for the offering. BTIG, Craig-Hallum, H.C. Wainwright & Co., Jones and Maxim Group LLC are acting as
co-managers for the offering.
A shelf registration statement on Form S-3 (File
No. 333-275562) relating to the securities to be offered in the public offering was filed with the Securities and Exchange Commission
(the “SEC”) and was declared effective on November 29, 2023. The public offering will be made only by means of a prospectus
supplement and accompanying prospectus that form a part of the registration statement. A preliminary prospectus has been filed with the
SEC and may be obtained on the SEC’s website at www.sec.gov. A final prospectus supplement and the accompanying prospectus relating
to and describing the terms of the underwritten registered direct offering will be filed with the SEC and, when available, may be obtained
on the SEC’s website at www.sec.gov. Copies of the final prospectus supplement and accompanying prospectus relating to the
public offering, when available, may be obtained by contacting: Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 520
Madison Avenue, New York, New York 10022, by telephone at 877-821-7388, or by email at prospectus_department@jefferies.com or
Cantor Fitzgerald & Co., Attention: Capital Markets, 110 East 59th Street, 6th Floor, New York, New York 10022, or by email at prospectus@cantor.com
This press release does not constitute an offer
to sell, or a solicitation of an offer to buy these securities, nor shall there be any sale of, these securities in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
Rezolute, Inc.
Rezolute is a late-stage rare disease company
focused on significantly improving outcomes for individuals with hypoglycemia caused by hyperinsulinism (HI). The Company’s
antibody therapy, RZ358, is designed to treat all forms of HI and has shown substantial benefit in clinical trials and real-world use
for the treatment of congenital hyperinsulinism and tumor hyperinsulinism.
Forward-Looking Statements
Any statements in this press release about the
Company’s future expectations, plans and prospects, including statements regarding the proposed public offering, constitute forward-looking
statements for purposes of the safe harbor provisions under the Private Securities Litigation Reform Act of 1995. Forward-looking statements
include any statements about the Company’s strategy, future operations and future expectations and plans and prospects for the Company,
and any other statements containing the words “anticipate,” “believe,” “estimate,” “expect,”
“intend”, “goal,” “may”, “might,” “plan,” “predict,” “project,”
“target,” “potential,” “will,” “would,” “could,” “should,” “continue,”
and similar expressions. Such forward-looking statements involve substantial risks and uncertainties that could cause the Company’s
development programs, future results, performance or achievements to differ significantly from those expressed or implied by the forward-looking
statements. Such risks and uncertainties include, among others, those related to market and other financial conditions, the potential
completion of the proposed public offering or the size or terms thereof, satisfaction of customary closing conditions related to the proposed
public offering and other factors discussed in the “Risk Factors” section contained in the preliminary prospectus supplement
and the reports that the Company files with the SEC. Any forward-looking statements represent the Company’s views only as of the
date of this press release. The Company anticipates that subsequent events and developments will cause its views to change. While the
Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation
to do so except as required by law.
Contacts:
Rezolute, Inc.
Christen Baglaneas
cbaglaneas@rezolutebio.com
508-272-6717
LHA Investor Relations
Tirth T. Patel
tpatel@lhai.com
212-201-6614
v3.24.1.1.u2
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Jun. 13, 2024 |
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8-K
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false
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| Document Period End Date |
Jun. 13, 2024
|
| Entity File Number |
001-39683
|
| Entity Registrant Name |
REZOLUTE, INC.
|
| Entity Central Index Key |
0001509261
|
| Entity Tax Identification Number |
27-3440894
|
| Entity Incorporation, State or Country Code |
NV
|
| Entity Address, Address Line One |
275 Shoreline Drive
|
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Suite 500
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Redwood City
|
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CA
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94065
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xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
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