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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): October 23, 2024
___________________________
CNS Pharmaceuticals, Inc.
(Exact name of registrant as specified in its
charter)
___________________________
| Nevada |
001-39126 |
82-2318545 |
|
(State or other jurisdiction of
incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
2100 West Loop South, Suite 900
Houston,
Texas 77027
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (800) 946-9185
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
communications 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
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§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.
Securities registered pursuant to Section
12(b) of the Act:
| Title of each class |
Trading Symbols(s) |
Name of each exchange on which registered |
| Common stock, par value $0.001 per share |
CNSP |
The NASDAQ Stock Market LLC |
|
Item 1.01. |
Entry into a Material Definitive Agreement. |
On October 23, 2024, CNS Pharmaceuticals,
Inc. (the “Company”) entered into a placement agency agreement (the “Placement Agency Agreement”) with A.G.P./Alliance
Global Partners (the “Placement Agent”) in connection with the sale by the Company of: (i) 3,700,000 shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common Stock”), and (ii) pre-funded warrants to purchase
13,947,060 shares of Common Stock (the “Pre-Funded Warrants”) in lieu of Common Stock, in a registered direct offering (the
“Offering”). The per share purchase price of each share of Common Stock was $0.17 per share and the purchase price for each
Pre-Funded Warrant in lieu thereof was $0.169 per Pre-Funded Warrant. In connection with the Offering, the Company entered into a Securities
Purchase Agreement (the “Purchase Agreement”) with certain institutional investors (collectively, the “Investors”)
that participated in the Offering. The closing of the Offering is subject to customary closing conditions and is expected to occur on
October 24, 2024 (the “Closing Date”).
Subject to certain
ownership limitations, each Pre-Funded Warrant is exercisable into one share of Common Stock at a price per share of $0.001
(as adjusted from time to time in accordance with the terms thereof). In lieu of making the cash payment otherwise contemplated to be
made upon exercise of the Pre-Funded Warrant, the holder may elect instead to receive upon such exercise (either in whole or
in part) the net number of shares of Common Stock determined according to a cashless exercise formula set forth in the Pre-Funded Warrant.
The holder of a Pre-Funded Warrant is prohibited from exercising such warrants to the extent that such exercise would result
in the number of shares of Common Stock beneficially owned by such holder and its affiliates exceeding 4.99% (or 9.99% at the election
of the Investor) of the total number of shares of Common Stock outstanding immediately after giving effect to the exercise.
The
gross proceeds to the Company from the Offering are expected to be approximately $3.0 million, before deducting the Placement Agent fees
and other estimated offering expenses payable by the Company. The Company intends to use the net proceeds from the Offering for working
capital and for general corporate purposes.
The
Company has agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock or file any registration statement
or prospectus, or any amendment or supplement thereto for 30 days after the Closing Date, subject to certain exceptions. In addition,
the Company has agreed not to effect or enter into an agreement to effect any issuance of Common Stock or any securities convertible into
or exercisable or exchangeable for shares of Common Stock involving a Variable Rate Transaction (as defined in the Purchase Agreement)
until 90 days after the Closing Date, subject to certain exceptions. Notwithstanding the foregoing, commencing five days following the
Closing Date, the Company will be permitted to make sales pursuant to its at-the-market sales agreement, dated July 26, 2024, by and between
the Company and the Placement Agent.
The
Offering of the Shares, Pre-Funded Warrants, and Common Stock underlying the Pre-Funded Warrants was made pursuant to a shelf registration
statement on Form S-3 (File No. 333-279285) (the “Registration Statement”), which was filed by the Company with the Securities
and Exchange Commission on May 9, 2024, and declared effective on May 17, 2024.
Pursuant to the Placement
Agency Agreement, the Company agreed to pay the Placement Agent an aggregate fee equal to 6.5% of the gross proceeds received by the Company
from the sale of the securities in the Offering. The Company also agreed to reimburse the Placement Agent for (i) up to $60,000 for
the Placement Agent’s legal fees, (ii) up to $20,000 for non-accountable fees and expenses and (iii) closing costs,
which shall include the reimbursement of the reasonable out-of-pocket cost of the escrow agent or clearing agent, as applicable, in an
amount up to $10,000.
The representations, warranties
and covenants contained in the Purchase Agreement and Placement Agency Agreement were made solely for the benefit of the parties to the
Purchase Agreement and Placement Agency Agreement. In addition, such representations, warranties and covenants: (i) are intended as a
way of allocating the risk between the parties to such agreements and not as statements of fact, and (ii) may apply standards of materiality
in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Accordingly, the
Purchase Agreement and Placement Agency Agreement are filed with this Current Report on Form 8-K only to provide investors with information
regarding the terms of the transactions described herein, and not to provide investors with any other factual information regarding the
Company. Information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement
or Placement Agency Agreement, which subsequent information may or may not be fully reflected in public disclosures.
A copy of the opinion of ArentFox
Schiff LLP relating to the legality of the Shares and Pre-Funded Warrants issuable under the Purchase Agreement is filed as Exhibit 5.1
to this Current Report on Form 8-K and is also incorporated by reference into the Registration Statement.
The forms of the Purchase
Agreement, the Pre-Funded Warrant and the Placement Agency Agreement are filed as Exhibits 10.1, 4.1, and 1.1, respectively, to this Current
Report on Form 8-K. The foregoing summaries of the terms of these documents are subject to, and qualified in their entirety by, such documents,
which are incorporated herein by reference.
On October 23, 2024, the Company
issued a press release regarding the transactions described above under Item 1.01 of this Current Report on Form 8-K. A copy of the press
release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
As of October 24, 2024, Pre-Funded
Warrants to purchase 8,828,530 shares of common stock have been exercised. Following these exercises, the Company has 49,574,933 shares
of Common Stock outstanding.
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits
Signature
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.
| |
CNS Pharmaceuticals, Inc. |
|
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| |
By: |
/s/ Chris
Downs |
|
| |
|
Chris Downs |
|
| |
|
Chief Financial Officer |
|
| |
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|
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| Dated: October 24, 2024 |
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Exhibit 1.1
October 23, 2024
CNS Pharmaceuticals, Inc.
Attention: John Climaco
2100 West Loop South, Suite 900
Houston, Texas
Dear Mr. Climaco:
This letter (the “Agreement”)
constitutes the agreement between A.G.P./Alliance Global Partners (“A.G.P.”) (the “Placement Agent”)
and CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”), that the Placement Agent shall serve as the exclusive
placement agent for the Company, on a reasonable “best efforts” basis, in connection with the proposed placement (the “Placement”)
of (i) shares (the “Shares”) of common stock of the Company, par value $0.001 per share (the “Common Stock”)
and (ii) pre-funded warrants (the “Pre-Funded Warrants” and together with the Shares, the “Securities”)
to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”). The Securities actually placed by the Placement
Agent are referred to herein as the “Placement Agent Securities.” The terms of the Placement shall be mutually agreed
upon by the Company and the purchasers of the Securities (each, a “Purchaser” and collectively, the “Purchasers”),
and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser, or an
obligation for the Company to issue any Securities or complete the Placement. The Company expressly acknowledges and agrees that the Placement
Agent’s obligations hereunder are on a reasonable “best efforts” basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement of the
Securities or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf of the
Company. The Securities shall be offered and sold under the Company’s registration statement on Form S-3 (File No. 333-279285).
The Placement Agent may retain other brokers or dealers to act as sub-agents or selected dealers on its behalf in connection with the
Placement. Certain affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement Agent Securities.
The sale of Placement Agent Securities to any Purchaser will be evidenced by a securities purchase agreement (the “Purchase Agreement”)
between the Company and such Purchaser, in a form reasonably acceptable to the Company and the Purchaser. Capitalized terms that are not
otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement,
officers of the Company will be available to answer inquiries from the prospective Purchasers.
SECTION 1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A.
Representations of the Company. With respect to the Placement Agent Securities, each of the representations and warranties
(together with any related disclosure schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement
in connection with the Placement, is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and
is, as of the date of this Agreement and as of the date of the sale of the Placement Agent Securities (the “Closing Date”),
hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that there are
no affiliations with any Financial Industry Regulatory Authority (“FINRA”) member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5.0%) or greater stockholder of the Company, except as set forth in the
Purchase Agreement.
B.
Covenants of the Company. The Company covenants and agrees to continue to retain (i) a firm of Public Company Accounting
Oversight Board independent registered public accountants for a period of at least two (2) years after the Closing Date and (ii) a reputable
transfer agent with respect to the Common Stock for a period of two (2) years after the Closing Date, provided in each case that the Company
is then subject to the reporting requirement of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Furthermore, except as set forth below, from the date hereof until 30 days after the Closing Date, without the prior written consent of
the Placement Agent, neither the Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance
or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or
supplement thereto, other than filing the final Prospectus and a registration statement on Form S-8 in connection with any employee benefit
plan; provided, however, such restrictions shall not apply with respect to an Exempt Issuance. In addition, from the date hereof until
the 90 day anniversary of the Closing Date, the Company shall not effect or enter into an agreement to effect any issuance of Common Stock
or Common Stock Equivalents involving an at-the-market offering or Variable Rate Transaction (as defined in the Purchase Agreement). No
Variable Rate Transaction shall be an Exempt Issuance. Notwithstanding the foregoing, commencing on the 5th day following the
Closing Date, the Company will be permitted to make sales under its Sales Agreement with A.G.P., dated July 26, 2024 (“ATM Agreement”).
SECTION 2.
REPRESENTATIONS OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing
of FINRA, (ii) is registered as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the United
States of America applicable to the offers and sales of the Placement Agent Securities by the Placement Agent, (iv) is and will be a
corporate body validly existing under the laws of its place of incorporation, and (v) has full power and authority to enter into and
perform its obligations under this Agreement. The Placement Agent will immediately notify the Company in writing of any change in its
status with respect to subsections (i) through (v) above. The Placement Agent covenants that it will use its reasonable best efforts
to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of applicable law.
SECTION 3.
COMPENSATION. In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent
and/or its respective designees a cash fee of 6.5% of the aggregate gross proceeds raised from the sale of the Placement Agent Securities
(the “Cash Fee”). The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof
as specified herein in the event that a determination is made by FINRA to the effect that the Placement Agent’s aggregate compensation
is in excess of that permitted by FINRA Rules or that the terms thereof require adjustment.
SECTION 4.
EXPENSES. The Company agrees to pay all costs, fees and expenses incurred by the Company 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, delivery and qualification of the Placement Agent Securities (including all printing and engraving costs);
(ii) all fees and expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Placement Agent Securities; (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), Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement;
(vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Placement Agent Securities for offer and sale
under the state securities or blue sky laws or the securities laws of any other country; (vii) the fees and expenses associated with
including the Placement Agent Securities on the Trading Market; (viii) up to $60,000 for the reasonable, documented, and accountable
expenses related to legal fees of counsel to the Placement Agent specifically incurred in connection with the Placement; (ix) non-accountable
expenses in an amount of not more than $20,000; and (x) closing costs, which shall include the reimbursement of the reasonable out-of-pocket
cost of the escrow agent or clearing agent, as applicable, in an amount up to $10,000; provided, that this sentence in no way limits
or impairs the indemnification or contribution provisions contained herein. The Placement Agent reserves the right to reduce any item
of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect
that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
SECTION 5.
INDEMNIFICATION.
A.
To the extent permitted by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent
and its affiliates, stockholders, directors, officers, employees, members, counsel and controlling persons (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) (each such person, an “Indemnified Person”) against all
losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable and documented fees and expenses
of counsel) (“Claims”), relating to or arising out of its activities hereunder, its status, title or role as Placement
Agent, pursuant to this Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect
thereof) are found in a final judgment (not subject to appeal) by a court of law to have resulted from the Placement Agent’s fraud,
willful misconduct, gross negligence, recklessness, or violation of law or insofar as such Claims arise out of or are based upon an untrue
statement or omission or alleged untrue statement or omission in disclosure in the Registration Statement, the Preliminary Prospectus,
or the Prospectus furnished to the Company in writing by the Placement Agent expressly for use therein. Notwithstanding anything set forth
herein to the contrary, the Company agrees to indemnify the Placement Agent and its counsel, Sullivan & Worcester LLP, to the fullest
extent set forth in this Section 5, against any and all claims asserted by any or person or entity alleging that the Placement Agent was
not permitted or entitled to act as a placement agent herein, or that the Company was not permitted to hire or retain the Placement Agent
herein, including but not limited to any claims arising out of any purported right of first refusal another person or entity claims to
have to act as a placement agent or any similar role with respect to the Company or its securities.
B.
Promptly after receipt by either of the s of notice of any claim or the commencement of any action or proceeding with respect to
which the Placement Agent is entitled to indemnity hereunder, the applicable Placement Agent will notify the Company in writing of such
claim or of the commencement of such action or proceeding, but failure to so notify the Company shall not relieve the Company from any
obligation it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights
and defenses. If the Company so elects or is requested by the Placement Agent, the Company will assume the defense of such action or proceeding
and will employ counsel reasonably satisfactory to the Placement Agent and will pay the reasonable fees and expenses of such counsel.
Notwithstanding the preceding sentence, the Placement Agent will be entitled to employ its own counsel separate from counsel for the Company
and from any other party in such action if counsel for the Placement Agent reasonably determines that it would be inappropriate under
the applicable rules of professional responsibility for the same counsel to represent both the Company and the Placement Agent. In such
event, the reasonable and documented fees and disbursements of no more than one (1) such separate counsel will be paid by the Company,
in addition to fees of local counsel. The Company will have the right to settle the claim or proceeding, provided that the Company will
not settle any such claim, action or proceeding without the prior written consent of the Placement Agent (which will not be unreasonably
withheld or delayed) unless such settlement provides for an unconditional and irrevocable release of the Indemnified Persons from any
and all liability arising out of such claim or proceeding.
C.
The Company agrees to notify the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement
of any action or proceeding relating to a transaction contemplated by this Agreement.
D.
If for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless,
then the Company shall contribute to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and
the Placement Agent on the other, but also the relative fault of the Company on the one hand and the Placement Agent on the other that
resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable
by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees
and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement
Agent’s share of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by the
Placement Agent under this Agreement.
E.
These indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement
is completed and shall survive the termination of this Agreement, and shall be in addition to any liability that the Company might otherwise
have to any indemnified party under this Agreement or otherwise.
SECTION 6.
ENGAGEMENT TERM. The Placement Agent’s engagement hereunder will be until the earlier of (i) November 1, 2024 and
(ii) the Closing Date (such earlier date, the “Termination Date”). In the event, however, in the course of the Placement
Agent’s performance of due diligence it deems it necessary to terminate the engagement, the Placement Agent may do so prior to
the Termination Date. The Company may elect to terminate the engagement hereunder for any reason prior to the Termination Date but will
remain responsible for fees and expenses pursuant to Section 3 and Section 4 hereof and fees and expenses with respect to the Placement
Agent Securities, if sold in the Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning the
Company’s obligation to pay any fees or expenses actually earned pursuant to Section 3 and Section 4 hereof and the provisions
concerning confidentiality, indemnification and contribution, no fiduciary duty and governing law (including the waiver of the right
to trial by jury) contained herein will survive any expiration or termination of this Agreement. If this Agreement is terminated prior
to the completion of the Placement, all fees or expenses due to the Placement Agent shall be paid by the Company to the Placement Agent
on or before the Termination Date (in the event such fees or expenses are earned or owed as of the Termination Date). The Placement Agent
agrees not to use any confidential information concerning the Company provided to the Placement Agent by the Company for any purposes
other than those contemplated under this Agreement.
SECTION 7.
PLACEMENT AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection
with this engagement is for the confidential use of the Company only in their evaluation of the Placement and, except as otherwise required
by law, the Company will not disclose or otherwise refer to the advice or information in any manner without the Placement Agent’s
prior written consent.
SECTION 8.
NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by
any person or entity not a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company
acknowledges and agrees that the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties
or liabilities to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention
of the Placement Agent hereunder, all of which are hereby expressly waived.
SECTION 9.
CLOSING. The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder,
are subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company contained
herein and in the Purchase Agreement, to the performance by the Company of its obligations hereunder and in the Purchase Agreement, and
to each of the following additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement
Agent:
A.
All corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each
of this Agreement, the Placement Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated
hereby with respect to the Placement Agent Securities shall have been completed or resolved in a manner reasonably satisfactory in all
material respects to the Placement Agent.
B.
The Placement Agent shall have received from the Company’s outside legal counsel, ArentFox Schiff LLP, such counsel’s
written opinion with respect to the Placement Agent Securities, addressed to the Placement Agent and dated as of the Closing Date, in
form and substance reasonably satisfactory to the Placement Agent.
C.
[Reserved]
D.
The Placement Agent shall have a received customary certificate of the Company’s Chief Executive Officer, as to the accuracy
of the representations and warranties contains in the Purchase Agreement, and a certificate of the Company’s secretary certifying
(i) that each of the Company’s charter documents are true and complete, have not been modified and are in full force and effect;
(ii) that the resolutions of the Company’s Board of Directors (or any authorized committee thereof) relating to the Placement are
in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company.
E.
The Shares shall be registered under the Exchange Act and, as of the Closing Date, the Common Stock and the shares issuable upon
exercise of the Pre-Funded Warrants shall be listed and admitted and authorized for trading on the Trading Market or other applicable
U.S. national exchange and satisfactory evidence of such action shall have been provided to the Placement Agent. The Company shall have
taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange
Act or delisting or suspending from trading the Shares from the Trading Market or other applicable U.S. national exchange, nor has the
Company received any information suggesting that the Commission or the Trading Market or other U.S. applicable national exchange is contemplating
terminating such registration or listing except as otherwise publicly disclosed.
F.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Placement Agent Securities or materially and adversely
affect or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business
or operations of the Company.
G.
The Company shall have entered into a Purchase Agreement with each of the several Purchasers of the Placement Agent Securities
and such agreements shall be in full force and effect and shall contain representations, warranties and covenants of the Company as agreed
upon between the Company and the Purchasers.
H.
FINRA shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition,
the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s
behalf, any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all
filing fees required in connection therewith.
I.
The Placement Agent shall have received an executed lock-up agreement from each of the Company’s executive officers and directors
prior to the Closing Date.
J.
[Reserved].
K.
The Placement Agent shall have received an executed FINRA questionnaire from each of the Company and the Company’s executive
officers, directors and 5% or greater securityholders.
If any of the conditions specified
in this Section 9 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the
Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 10.
GOVERNING LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed entirely in such State, without regard to its conflict of laws principles. This Agreement
may not be assigned by either party without the prior written consent of the other party. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect
to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising under
this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and, by
execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally,
the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION 11.
ENTIRE AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between the parties hereto,
and supersedes all prior agreements and understandings, relating to the subject matter hereof. If any provision of this Agreement is
determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any
other provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified
or waived except by an instrument in writing signed by both the Placement Agent and the Company. The representations, warranties, agreements
and covenants contained herein shall survive the Closing Date of the Placement and delivery of the Placement Agent Securities for three
years after the Closing Date. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or a .pdf format file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof.
SECTION 12.
NOTICES. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication
is sent to the email address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day,
(b) the next business day after the date of transmission, if such notice or communication is sent to the email address on the signature
pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third
business day following the date of mailing, if sent by an internationally recognized air courier service, or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages hereto.
SECTION 13.
PRESS ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, on and after the Closing Date, have the right to
reference the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials
and on its website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
Very truly yours,
A.G.P./ALLIANCE GLOBAL PARTNERS
By: /s/ Thomas J. Higgins
Name: Thomas J. Higgins
Title: Managing Director
Address for Notice:
590 Madison Avenue 28th Floor
New York, New York 10022
Attn: Thomas J. Higgins
E-mail: thiggins@allianceg.com
Accepted and Agreed to as of
the date first written above:
CNS PHARMACEUTICALS, INC.
By: /s/ Christopher S. Downs
Name: Christopher S. Downs
Title: Chief Financial Officer
Address for Notice:
2100 West Loop South, Suite 900
Houston, Texas
Attn: Chief Financial Officer
E-mail: notices@cnspharma.com
[Signature Page to Placement Agency Agreement]
Exhibit 4.1
FORM OF PRE-FUNDED
COMMON STOCK PURCHASE WARRANT
CNS PHARMACEUTICALS,
INC.
| Warrant Shares: [•] |
Initial Exercise Date: October 24, 2024
Issue Date: October 24, 2024 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, [•] or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”), but not thereafter, to subscribe for and purchase from CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
up to [•] shares of common stock, par value $0.001 per share (the “Common Stock”) (as subject to adjustment hereunder,
the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b).
Section 1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated October 23, 2024, among the Company and each purchaser signatory
thereto.
Section 2.
Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise.
No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of
any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised
in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date
on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of
Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. For the avoidance
of doubt, there is no circumstance that would require the Company to net cash settle this Warrant.
b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant
Share, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than
the nominal exercise price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person 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-paid aggregate exercise
price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to
the Termination Date. The remaining unpaid exercise price per Warrant Share under this Warrant shall be $0.001, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. This Warrant may be exercised, in whole or in part, by means of a “cashless exercise” in
which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding
the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a)
hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to
the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P.
(“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise
is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until
two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP
on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise
is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading
Day; |
| (B) = | the Exercise Price, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant
Shares shall take on the registered characteristics of this Warrant. The Company agrees not to take any position contrary to this Section
2(c), except to the extent required by applicable law, rules, or regulations.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City
time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading Market and if prices for the
Common Stock are then reported on OTCQB or OTCQX and OTCQB or OTCQX, as applicable, is not a Trading Market, the VWAP of the Common Stock
for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not then listed or quoted for
trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other
cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders
of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.
“Trading Day”
means any day on which the Trading Market is open for trading, including any day on which the Trading Market is open for trading for a
period of time less than the customary time.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on a Trading Market and
if prices for the Common Stock are then reported on OTCQB or OTCQX, and OTCQB or OTCQX, as applicable, is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the
Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and prices for the Common Stock are then reported on The Pink
Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the holders of a majority in interest of the Common Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such
system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate
representing the Warrant Shares, registered in the Company’s share register in the name of the Holder or its designee, for the number
of Warrant Shares set forth in the Notice of Exercise to the address specified by the Holder in such Notice of Exercise by the date that
is the earliest of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after
delivery of the aggregate Exercise Price to the Company, and (iii) the number of Trading Days comprising the Standard Settlement Period
after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading
Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the
Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject
to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing
to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery
Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent (which
may be the Transfer Agent) that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding
the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise
Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver, or cause
to be delivered, the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date, and the
Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise
Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion
of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time will be less than the
amount stated on the face hereof.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving upon such
exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Warrant Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder,
either reinstate the portion of this Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which
case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued
had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases shares of Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale
price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in
respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a 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 shares of Common Stock upon exercise
of this Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share of Common Stock.
vi.
Charges, Taxes and Expenses. The issuance and delivery of Warrant Shares shall be made without charge to the Holder for
any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses
shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form, attached hereto as Exhibit B,
duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise
and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner that prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have
the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates,
(ii) any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Persons
whose beneficial ownership of Common Stock would be aggregated with the Holder’s for the purposes of determination of beneficial
ownership pursuant to Section 13(d) and Rule 13d-3 of the Exchange Act (such Persons, “Attribution Parties”)), would
beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Warrant
Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of
Warrant Shares that would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any
other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion
or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.
Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that
the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder
is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this
Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together
with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the
Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this
Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify
or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant that are not in compliance with
the Beneficial Ownership Limitation, except to the extent the Holder has detrimentally relied on the number of outstanding shares of Common
Stock that was provided in writing by the Company. In addition, a determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, and the Company
shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant
that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number of outstanding
shares of Common Stock that was provided by the Company. For purposes of this Section 2(e), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent
periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a
more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the
written request of a Holder, the Company shall within one Trading Day confirm orally and in writing 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 or its Affiliates or Attribution Parties
since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be [4.99/9.99]% of the Common Stock outstanding immediately after giving effect to the issuance of Warrant Shares issuable upon
exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the Common Stock outstanding immediately
after giving effect to the issuance of Warrant Shares upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st
day after such notice is delivered to the Company. The provisions of this paragraph shall not be construed and implemented in a manner
otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) that may be
defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder
of this Warrant. To the extent that this Warrant is unexercisable as a result of the Holder’s Beneficial Ownership Limitation, no
alternate consideration is owing to the Holder.
Section 3.
Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any Warrant Shares issued by the Company upon exercise of
this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of
reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant remains unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date
for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Reserved.
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights that the Holder could have acquired if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the
beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person in which the Company is
not the surviving entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance
or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to
which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been
accepted by the holders of more than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization 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, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires more than 50% of the voting power of the common equity
of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(a) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price that applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of
the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the
consummation of such Fundamental Transaction), and that is reasonably satisfactory in form and substance to the Holder. Upon the occurrence
of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of
such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given
date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If, while this Warrant is outstanding, (A) the Company declares a dividend (or any other
distribution in whatever form) on the Common Stock, (B) the Company declares a special nonrecurring cash dividend on, or a redemption
of, the Common Stock, (C) the Company authorizes the granting to all holders of shares of Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company is required
in connection with a Fundamental Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least three calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the shares of Common Stock of record
to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the shares of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure
to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required
to be specified in such notice; and provided, further, that no notice shall be required if the information is disseminated in a press
release or a document filed with the Commission. To the extent that any notice provided in this Warrant constitutes, or contains, material,
non-public information regarding the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the
date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
iii.
Voluntary Adjustment by the Company. Subject to the rules and regulations of the Trading Market on which the Common Stock
is then listed, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce
the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4.
Transfer of Warrant.
a)
Transferability. Subject to compliance with applicable securities law, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company on the date on which the Holder
delivers an assignment form to the Company assigning this Warrant in full. This Warrant, if properly assigned in accordance herewith,
may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. Subject to compliance with applicable securities law, this Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations
in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to
any transfer that may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges
shall be dated the Issue Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof 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.
Section 5.
Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) or 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to this Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of this Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding
Trading Day.
d)
Authorized Shares.
The Company covenants that,
during the period this Warrant is outstanding, it will reserve from its authorized and unissued shares of Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares underlying this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon
the exercise of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares
may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares that may be issued and delivered upon
the exercise this Warrant will, upon exercise of this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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 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 (i) not increase the par value of any shares of Common Stock above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant and (iii) 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.
Before taking any action that
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.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be determined in accordance with the provisions of the Purchase Agreement.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other
provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this
Warrant, and such failure results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be
sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate
proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers
or remedies hereunder.
h)
Notices. Any notice, request or other document required or permitted to be given or delivered hereunder shall be delivered
in accordance with the notice provisions of the Purchase Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the
Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and
shall be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
o)
Currency. All dollar amounts referred to in this Warrant are in United States Dollars (“U.S. Dollars”).
All amounts owing under this Warrant shall be paid in U.S. Dollars. All amounts denominated in other currencies shall be converted in
the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means,
in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Warrant, the U.S. Dollar exchange rate as published
in the Wall Street Journal (New York edition) on the relevant date of calculation.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
CNS PHARMACEUTICALS, INC.
By: _____________________________
Name: Christopher Downs
Title: Chief Financial Officer
EXHIBIT A
NOTICE OF EXERCISE
TO: CNS PHARMACEUTICALS, INC.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[ ] in
lawful money of the United States; or
[ ] if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),
to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
______________________________________
The Warrant Shares shall be delivered to the following DWAC Account
Number:
______________________________________
______________________________________
______________________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
_______________________________
Name of Authorized Signatory:
_______________________________
Title of Authorized Signatory:
_______________________________
Date:
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to exercise the Warrant to purchase Warrant Shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
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Exhibit 5.1
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ArentFox Schiff LLP
1717 K Street, NW
Washington, DC 20006
202.857.6000 main
202.857.6395 fax
afslaw.com
|
October 23, 2024
Board of Directors
CNS Pharmaceuticals, Inc.
2100 West Loop South, Suite 900
Houston, Texas 77027
Re:
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to
CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”), in connection with the Registration Statement on Form
S-3, Registration No. 333-279285 (as amended, the “Registration Statement”), filed by the Company with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”)
and the related prospectus included therein (the “Prospectus”) and the prospectus supplement to be filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act (the “Prospectus Supplement”). The Registration Statement,
which was declared effective on May 17, 2024, relates to the issuance and sale from time to time, pursuant to Rule 415 of the rules and
regulations promulgated under the Securities Act, of, among other securities, (i) shares of the Company’s common stock, par value
$0.001 per share (the “Common Stock”) and (ii) warrants to purchase Common Stock. We have also acted as counsel to
the Company in connection with the issuance, offer and sale of up to an aggregate of: (i) 3,700,000 shares (the “Shares”)
of Common Stock, and (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to 13,947,060 shares of Common
Stock underlying the Pre-Funded Warrants (the “Warrant Shares”). The Shares, the Pre-Funded Warrants and the Warrant
Shares are collectively referred to herein as the “Securities.” The Securities are being sold pursuant to a securities
purchase agreement by and among the Company and certain investors (the “Securities Purchase Agreement”). This opinion
letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulations S-K under the Securities Act.
In connection with our opinion,
we have examined the Registration Statement (including the exhibits thereto), the Prospectus, the Prospectus Supplement, the Securities
Purchase Agreement, the form of Pre-Funded Warrant and such other documents, corporate records and instruments, and have examined such
laws and regulations, as we have deemed necessary for the purposes of this opinion. In making our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents
submitted to us as copies and the legal capacity of all natural persons. As to matters of fact material to our opinions in this letter,
we have relied on certificates and statements from officers and other employees of the Company, public officials and other appropriate
persons.
| |
CNS
Pharmaceuticals, Inc.
October 23, 2024
Page 2
|
Based on the foregoing and
subject to the qualifications set forth below, we are of the opinion that:
| 1. | The Shares, when issued by the Company against payment therefor
in the circumstances contemplated by the Prospectus and Prospectus Supplement, will have been duly authorized for issuance by all necessary
corporate action by the Company, and will be validly issued, fully paid and non-assessable; |
| 2. | The Pre-Funded Warrants when issued by the Company against payment
therefor in the circumstances contemplated by the Prospectus, will have been duly authorized by all necessary corporate action of the
Company and will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms;
and |
| 3. | The Warrant Shares initially issuable upon exercise of the Pre-Funded
Warrants when issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Pre-Funded
Warrants will have been duly authorized by all necessary corporate action of the Company, and will be validly issued, fully paid and
non-assessable. |
The opinions set forth above
are subject to the following qualifications:
A. The
opinion expressed herein with respect to the legality, validity, binding nature and enforceability of the Pre-Funded Warrants is subject
to (i) applicable laws relating to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws
affecting creditors’ rights generally, whether now or hereafter in effect and (ii) general principles of equity, including,
without limitation, concepts of materiality, laches, reasonableness, good faith and fair dealing and the principles regarding when injunctive
or other equitable remedies will be available (regardless of whether considered in a proceeding at law or in equity).
B. The
foregoing opinions are limited to the laws of the State of New York and Chapter 78 of the Nevada Revised Statutes and we express no opinion
as to the laws of any other jurisdiction.
The opinions expressed in
this opinion letter are as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date,
and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may come to our attention
after that date or any changes in law that may occur or become effective after that date. The opinions herein are limited to the matters
expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinions expressly
set forth in this opinion letter.
We hereby consent to
the filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K of the Company to be filed on October 24, 2024, and to the
reference to us under the caption “Legal Matters” in the Prospectus Supplement with respect to the Securities and under the
caption “Legal Matters” in the Prospectus contained in the Registration Statement. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Commission promulgated thereunder.
Very truly yours,
/s/ ArentFox Schiff, LLP
ArentFox Schiff LLP
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of October 23, 2024, between CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined
below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from
the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(m).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable Laws”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Auditor”
means Malone Bailey LLP.
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Beneficial Ownership
Limitation” shall have the meaning ascribed to such term in Section 2.1(a).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(nn).
“Board of Directors”
means the board of directors, or any authorized committee thereof, of the Company.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and
all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations
to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading
Day following the date hereof.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company Counsel”
means ArentFox Schiff LLP, with offices located at 1301 Avenue of the Americas, 42nd Floor, New York, NY 10019 United States
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight
(New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless
otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City
time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise
instructed as to an earlier time by the Placement Agent.
“DVP” shall
have the meaning ascribed to such term in Section 2.1(a).
“DWAC”
shall have the meaning ascribed to such term in Section 2.1(a).
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“Environmental Law”
shall have the meaning ascribed to such term in Section 3.1(p).
“Evaluation Date”
shall have the meaning ascribed to such term in Section 3.1(v).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock, options, restricted stock units, or other equity awards to employees, consultants, contractors,
advisors, officers, or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by a majority of
the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for
such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued
hereunder and upon exercise of other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in
connection with stock splits or combinations) or to extend the term of such securities, (c) shares of Common Stock or securities exercisable
or exchangeable for or convertible into shares of Common Stock sold to employees, directors, consultants, or any of their affiliated entities
in the ordinary course of business or pursuant to agreements or in connection with commitments in place as of the date hereof and (d)
securities issued pursuant to acquisitions, joint ventures, strategic alliances, or other strategic transactions, including without limitation
collaborations or arrangements involving research and development or the sale or licensing of intellectual property, approved by a majority
of the disinterested directors of the Company, except for a transaction in which the Company is issuing securities primarily for the purpose
of raising capital or to an entity whose primary business is investing in securities (for avoidance of doubt, securities issued to a venture
arm of a strategic investor shall be deemed an “Exempt Issuance”), provided in the case of each of clauses (c) and (d), that
such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require
or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Federal Reserve”
shall have the meaning ascribed to such term in Section 3.1(nn).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(k).
“Hazardous Substances”
shall have the meaning ascribed to such term in Section 3.1(p).
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section 3.1(s).
“Issuer Free Writing
Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(ii).
“IT Systems”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance of any
kind whatsoever.
“Lock-Up Agreements”
means the lock-up agreements, each dated as of the date hereof in substantially the form of Exhibit A.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits”
shall have the meaning assigned to such term in Section 3.1(r).
“Money Laundering
Laws” shall have the meaning assigned to such term in Section 3.1(oo).
“OFAC”
means the Office of Foreign Assets Control of the U.S. Treasury Department
“Offering”
means the offering of the Securities hereunder.
“Per Pre-Funded Warrant
Purchase Price” means the Per Share Purchase Price minus $0.001.
“Per Share Purchase
Price” equals $0.17, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date of this Agreement.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Personal Data”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Placement Agent”
means A.G.P./Alliance Global Partners.
“Pre-Funded Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pre-Funded Warrants”
means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section
2.3(a) hereof, in substantially the form of Exhibit B attached hereto.
“Pre-Settlement Period”
shall have the meaning ascribed to such term in Section 2.1(b).
“Pre-Settlement Securities”
shall have the meaning ascribed to such term in Section 2.1(b).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company, a Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign).
“Prospectus”
means the final prospectus filed under the Registration Statement complying with Rule 424(b).
“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that will be filed with the Commission and delivered
by the Company to each Purchaser at or prior to the Closing.
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.9.
“Registration Statement”
means the effective registration statement with the Commission on Form S-3 (File No. 333-279285), as amended, including all information,
documents and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Securities
and includes any Rule 462(b) Registration Statement.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b) Registration
Statement” means any registration statement prepared by the Company registering additional Securities, which was filed with
the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the Commission
pursuant to the Securities Act.
“Sanctions”
shall have the meaning ascribed to such term in Section 3.1(kk).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(j).
“Securities”
means for each Purchaser, the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares purchased pursuant to this Agreement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing shares of Common Stock).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Shares or Pre-Funded Warrants (in lieu of Shares) purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in U.S. dollars and in immediately available funds.
“Subsidiary”
and “Subsidiaries” means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Trading Market is open for trading.
“Trading Market”
means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE
American, NYSE Arca, the OTC Bulletin Board, or the OTCQX or the OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized
successor to any of the foregoing), then the “Trading Market” shall mean such other market or exchange on which the Company’s
Common Stock is then listed or traded.
“Transaction Documents”
means this Agreement, the Pre-Funded Warrants, and the Lock-Up Agreements, all exhibits and schedules thereto and hereto and any other
documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Continental Stock Transfer and Trust, the current transfer agent of the Company, with a mailing address of 1 State Street 30th Floor,
New York, NY 10004-1561, and any successor transfer agent of the Company.
“Variable Rate Transaction”
shall have the meaning ascribed to such term in Section 4.12(b).
ARTICLE II
PURCHASE AND SALE
2.1.
Closing.
(a)
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution
and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees
to purchase, the number of shares of Common Stock set forth under the heading “Subscription Amount” on the Purchaser’s
signature page hereto, at the Per Share Purchase Price. Notwithstanding anything herein to the contrary, to the extent that a Purchaser
determines, in its sole discretion, that as a result of such Purchaser’s Subscription Amount, such Purchaser (together with such
Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates)
would beneficially own shares of Common Stock in excess of the Beneficial Ownership Limitation, the Purchaser may elect to purchase Pre-Funded
Warrants in lieu of the Shares as determined pursuant to Section 2.3(a). The “Beneficial Ownership Limitation” shall
be 4.99% (or, at the election of the Purchaser, 9.99%) of the number of shares of Common Stock outstanding immediately after giving effect
to the issuance of the Securities on the Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the option
of the Purchaser; provided, however, the Purchaser shall receive Pre-Funded Warrants at the option of the Company if necessary to avoid
a stockholder vote in connection with the purchase.
Each Purchaser shall deliver
to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the
signature page hereto executed by such Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement
with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and/or Pre-Funded Warrants as determined
pursuant to Section 2.3(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via the
exchange of documents and signatures or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement
Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in
the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified
by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable
Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Unless otherwise
directed by the Placement Agent, the Pre-Funded Warrants shall be issued to each Purchaser in originally signed form.
(b)
Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by the Company
and an applicable Purchaser through, and including the time immediately prior to, the Closing (the “Pre-Settlement Period”),
such Purchaser sells to any Person all, or any portion, of any Securities to be issued hereunder to such Purchaser at the Closing (collectively,
the “Pre-Settlement Securities”), such Person shall, automatically hereunder (without any additional required actions
by such Purchaser or the Company), be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company
shall be deemed unconditionally bound to sell, such Pre-Settlement Securities to such Purchaser at the Closing; provided, that the Company
shall not be required to deliver any Pre-Settlement Securities to such Person prior to the Company’s receipt of the purchase price
for such Pre-Settlement Securities hereunder; and provided, further, that the Company hereby acknowledges and agrees (i) that the foregoing
shall not constitute a representation or covenant by such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement
Securities during the Pre-Settlement Period and (ii) that any such decision to sell any shares of Common Stock by such Purchaser shall
solely be made at the time such Purchaser elects to effect any such sale, if any.
2.2.
Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, in form and substance reasonably satisfactory to the Placement Agent;
(iii)
[Reserved.];
(iv)
the Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief
Financial Officer;
(v)
subject to the penultimate sentence of Section 2.1(a), a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to the number of shares of Common Stock set forth on such Purchaser’s signature page hereto, registered in the name
of such Purchaser;
(vi)
[Reserved];
(vii)
[Reserved];
(viii)
if applicable, an originally signed Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares
of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded Warrants divided by the Per
Pre-Funded Warrant Purchase Price, with an exercise price equal to $0.001, subject to adjustment therein;
(ix)
the Preliminary Prospectus and the Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act);
(x)
Lock-up Agreements, in form and substance reasonably acceptable to the Placement Agent and the Purchasers, executed by each of
the Company’s executive officers, directors.
(xi)
an Officer’s Certificate, in form and substance reasonably satisfactory to the Placement Agent; and
(xii)
a Secretary’s Certificate, in form and substance reasonably satisfactory to the Placement Agent.
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designees.
2.3.
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect (as defined below), in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers
contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such
date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein
(unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Trading
Market on which it is currently listed, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported
by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by U.S. or New York State authorities,
nor shall there have occurred after the date of this Agreement any material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case,
in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser in addition to the information included in the Disclosure Schedules attached hereto, which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation or warranty made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company (each, a “Subsidiary”, and collectively,
the “Subsidiaries”) are as set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital
stock or equity interests, as applicable, of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
rights. There are no outstanding options, warrants, scrips or rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right
to subscribe for or acquire, any capital stock or equity interests, as applicable, of any Subsidiary, or contracts, commitments, understandings
or arrangements by which any Subsidiary is or may become bound to issue capital stock or equity interests, as applicable. If the Company
has no Subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. Each of the Company and the Subsidiaries has been duly organized and validly exists as a
corporation, limited partnership or company in good standing (or the foreign equivalent thereof, if any) under the laws of its jurisdiction
of organization. The Company and each of the Subsidiaries is duly qualified to do business and is in good standing as a foreign or extra-provincial
corporation, partnership, company or limited liability company in each jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate) would not have a Material Adverse Effect. No Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate
or articles of incorporation, bylaws or other organizational or charter documents. The term “Material Adverse Effect”
means a material adverse effect on (i) the business, general affairs, management, condition (financial or otherwise), results of operations,
stockholders’ equity, assets, properties or prospects of the Company and the Subsidiaries, taken as a whole, (ii) the legality,
validity or enforceability of any Transaction Document, or (iii) the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction
Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by general
equitable principles and laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and
(iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state (including state blue sky law), local or other
governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents,
other than: (i) the filings required pursuant to Section 4.5 of this Agreement, (ii) the filing with the Commission of the Prospectus,
and (iii) notices and/or application(s) to and approvals by each applicable Trading Market for the listing of the Shares and Pre-Funded
Warrant Shares for trading thereon in the time and manner required thereby, and (iv) filings required by the Financial Industry Regulatory
Authority (collectively, the “Required Approvals”).
(f)
Issuance of the Shares and Pre-Funded Warrant Shares; Qualification; Registration.
(i)
The Shares and Pre-Funded Warrant Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company, except
for restrictions set forth in the Transaction Documents. The Pre-Funded Warrants are duly authorized and, when issued in accordance with
this Agreement, will be binding obligations of the Company under the law of the jurisdiction governing the Pre-Funded Warrants, duly and
validly issued, and free and clear of all Liens imposed by the Company, except for restrictions set forth in the Transaction Documents.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement and the Pre-Funded Warrants. The Securities are not and will not be subject to the preemptive rights of any holders of any security
of the Company or similar contractual rights granted by the Company.
(ii)
The Shares and Pre-Funded Warrant Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company. The Pre-Funded
Warrants are duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued and free and clear of
all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to this Agreement and the Pre-Funded Warrants. The Company has prepared and filed the Registration Statement in
conformity with the requirements of the Securities Act, which Registration Statement became effective on May 17, 2024, including the Prospectus,
and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus or the Prospectus Supplement has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations
of the Commission, shall file the Prospectus and the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the
Registration Statement and any amendments thereto became effective as determined under the Securities Act, at the date of this Agreement
and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to
the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, the Prospectus Supplement
and any amendments or supplements thereto, at the time the Prospectus and the Prospectus Supplement or any amendment or supplement thereto
was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and
did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The Company was at the time of the filing of the
Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction
requirements with respect to the aggregate market value of the common equity held by non-affiliates prior to this offering as set forth
in General Instruction I.B.1 of Form S-3.
Any “issuer free writing
prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities is hereafter referred to as an “Issuer
Free Writing Prospectus”. Any reference herein to the Preliminary Prospectus and the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein as of the date of filing thereof; and any reference herein to any “amendment”
or “supplement” with respect to any of the Preliminary Prospectus and the Prospectus shall be deemed to refer to and include
(i) the filing of any document with the Commission incorporated or deemed to be incorporated therein by reference after the date of filing
of such Preliminary Prospectus or Prospectus and (ii) any such document so filed.
All references in this Agreement
to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus, or any amendments or
supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission on EDGAR.
(g)
Securities Act Compliance. The Registration Statement complies, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will comply, in all material respects, with the applicable provisions of the Securities
Act. Each part of the Registration Statement, when such part became effective, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus,
as of its filing date, and any amendment thereof or supplement thereto, did not and will not contain an 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.
(h)
No Stop Orders. No order preventing or suspending the use of the Registration Statement, the Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission.
(i)
Capitalization. The equity capitalization of the Company is as set forth in the Registration Statement and the SEC Reports
as of the dates indicated therein. All of the issued and outstanding shares of Common Stock are fully paid and non-assessable and have
been duly and validly authorized and issued, in compliance with all applicable federal and state securities laws and not in violation
of or subject to any preemptive or similar right that entitles any person to acquire from the Company any Common Stock or other security
of the Company or any security convertible into, or exercisable or exchangeable for, Common Stock or any other such security, except for
such rights as may have been fully satisfied or waived prior to the date hereof. Except as set forth on Schedule 3.1(i), or as
a result of the issuance and sale of the Securities, the Company has not issued any capital stock since its most recently filed SEC Report.
Except as set forth on Schedule 3.1(i), or as a result of the issuance and sale of the Securities, the Company has no outstanding
options, warrants, scrips or rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common
Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional Common
Stock or Common Stock Equivalents and no Person has any right of first refusal, pre-emptive right, right of participation, or any similar
right to participate in the transactions contemplated by the Transaction Documents, except for such rights as may have been fully satisfied
or waived prior to the date hereof. Except as set forth on Schedule 3.1(i), the issuance and sale of the Securities will not obligate
the Company to issue Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. Except as set forth
in the SEC Reports, there are no outstanding securities or instruments of the Company with any provision that adjusts the exercise, conversion,
exchange or reset price of such security or instrument upon an issuance of securities by the Company (other than in connection with a
stock split, recapitalization, or similar transaction). There are no outstanding securities or instruments of the Company that contain
any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is
or may become bound to redeem an equity security of the Company. The Company does not have any stock appreciation rights or “phantom
share” plans or agreements or any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly
issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws where applicable, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
Except for the Required Approvals, no further approval or authorization of any shareholder, the Board of Directors or others is required
for the issuance and sale of Securities. Except as set forth in the SEC Reports, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(j)
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the
Company under the Securities Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Preliminary Prospectus and the Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension (or
waiver from the Commission) of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
(k)
Financial Statements. The consolidated financial statements of the Company, including the notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) applied on
a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(l)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial statements
included in or incorporated by reference into the Registration Statement, the Preliminary Prospectus and the Prospectus, except as set
forth ion Schedule 3.1(l), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) neither the Company nor any Subsidiary has incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting in any material respect, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any executive officer, director or Affiliate,
except pursuant to existing Company stock option or omnibus incentive plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made
that has not been publicly disclosed at the time that this representation is made.
(m)
Litigation. Except as set forth in on Schedule 3.1(m), there is no action, suit, inquiry, notice of violation, Proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”) that (i) adversely affects or challenges the legality, validity
or enforceability of any of the Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 3.1(m), neither the Company nor any Subsidiary,
nor any director or executive officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty, which could result in a Material Adverse Effect. There
has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or executive officer of the Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.
(n)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and
hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as could not
have or reasonably be expected to result in a Material Adverse Effect.
(p)
Environmental Law. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge,
emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants, petroleum
products or other hazardous or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf
of, or caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose acts or omissions the
Company is or may be liable) upon any property now or previously owned, operated, used or leased by the Company or any Subsidiary, or
upon any other property, that would be a violation of or give rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit, common law provision or other legally binding standard relating to pollution or protection of human health
and the environment (“Environmental Law”), except for violations and liabilities which, individually or in the aggregate,
would not have a Material Adverse Effect. There has been no disposal, discharge, emission contamination or other release of any kind at,
onto or from any such property or into the environment surrounding any such property of any Hazardous Substances with respect to which
the Company or any Subsidiary has knowledge, except as would not, individually or in the aggregate, have a Material Adverse Effect. There
is no pending or, to the best of the Company’s knowledge, threatened administrative, regulatory or judicial action, claim or notice
of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Subsidiary, except
as would not, individually or in the aggregate, have a Material Adverse Effect. To the best of the Company’s knowledge, no property
of the Company or any Subsidiary is subject to any Lien under any Environmental Law, except as would not, individually or in the aggregate,
have a Material Adverse Effect. Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is subject to any order,
decree, agreement or other individualized legal requirement related to any Environmental Law, that, in any case (individually or in the
aggregate), would have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their requirements, except as would not, individually or in the
aggregate, have a Material Adverse Effect. In the ordinary course of its business, the Company periodically reviews the effect of Environmental
Laws on the business, operations and properties of the Company and the Subsidiaries and identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties
or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, have a Material Adverse Effect.
(q)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities currently held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material
respects.
(r)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.
(s)
Intellectual Property. Except as set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus,
to the Company’s knowledge, the Company and the Subsidiaries have, or have rights to use (or can acquire on reasonable terms), all
patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses
and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses
as described in the Registration Statement, the Preliminary Prospectus and the Prospectus and which the failure to so have could reasonably
be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement
except as would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since
the date of the latest financial statements included within or incorporated by reference into the Registration Statement, the Preliminary
Prospectus and the Prospectus, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person or is aware of any facts which would form a reasonable basis for any such claim, except as could
not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company
and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. None of the Intellectual Property Rights used by the Company or any of its Subsidiaries in their respective businesses has been
obtained or is being used by the Company or such Subsidiary in violation of any contractual obligation binding on the Company or any of
its subsidiaries in violation of the rights of any person. The Company and its subsidiaries have taken all reasonable steps in accordance
with normal industry practice to protect and maintain the Intellectual Property Rights including, without limitation, the execution of
appropriate nondisclosure and invention assignment agreements. The consummation of the transactions contemplated by this Agreement will
not result in the loss or impairment of, or payment of, and additional amounts with respect to, nor require the consent of, any other
person regarding the Company’s or any of its subsidiaries’ right to own or use any of the Intellectual Property Rights as
owned or used in the conduct of such party’s business as currently conducted. To the knowledge of the Company and its Subsidiaries,
no employee of any of the Company or its subsidiaries is the subject of any pending claim or proceeding involving a violation of any term
of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation agreement,
nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such violation relates to such employee’s
employment with the Company or its subsidiaries or actions undertaken by the employee while employed with the Company or its Subsidiaries.
The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property
Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property
Rights that are necessary to conduct its business.
(t)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither
the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant
increase in cost.
(u)
Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(u), none of the executive officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, executive officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or
from any executive officer, director or such employee or, to the knowledge of the Company, any entity in which any executive officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each
case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company or a Subsidiary and (iii) other employee benefits, including stock option agreements under any stock
option or omnibus incentive plan of the Company.
(v)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, except as disclosed in the SEC Reports, the Registration Statement, the Preliminary Prospectus
and the Prospectus. The Company and the Subsidiaries 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 authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of applicable dates specified under
the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report
under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Except as set forth in the Registration Statement, the Preliminary Prospectus and the
Prospectus, since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and the Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and the Subsidiaries.
(w)
Certain Fees. Except for fees payable to the Placement Agent, no brokerage or finder’s fees or commissions are or
will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. Other than to Persons engaged by any
Purchaser, the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction
Documents.
(x)
Investment Company. The Company is not, and immediately after receipt of payment for the Securities, will not be required
to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not be required to register as an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(y)
Registration Rights. Except as set forth in the SEC Reports, the Registration Statement, the Preliminary Prospectus and
the Prospectus, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of
any securities of the Company or any Subsidiary that has not been satisfied or waived prior to the date hereof.
(z)
Listing and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange
Act and files periodic reports with the Commission; the Common Stock is registered with the Commission under Section 12(b) of the Exchange
Act and the Company is not in breach of any filing or other requirements under the Exchange Act. The Company has not received any notice
from that the Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Registration Statement,
the Preliminary Prospectus and the Prospectus, the Company has not, in the 12 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock are or have been listed or quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. Except as set forth in the SEC Reports, the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company is, and has no reason to believe that it will not in the foreseeable future continue to be,
in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through
The Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to The Depository
Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(aa)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its jurisdiction of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and
the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a
result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(bb)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information that is not otherwise
disclosed in the Preliminary Prospectus or the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company
to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including
pursuant to the SEC Reports and the Disclosure Schedules to this Agreement, is true and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the
twelve (12) months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section
3.2 hereof.
(cc)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) except as set forth in
the SEC Reports, any applicable stockholder approval provisions of any Trading Market on which any of the securities of the Company are
listed or designated.
(dd)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or
circumstances that lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws
of any jurisdiction within one (1) year from the Closing Date. All outstanding secured and unsecured Indebtedness of the Company or any
Subsidiary, or for which the Company or any Subsidiary has commitments, is set forth on Schedule 3.1(dd). For the purposes of this
Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other
than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations
in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet
(or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ee)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all U.S. federal, state and local income and
all foreign tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges, fines or penalties that are material in amount, shown or determined to be due on such returns, reports
and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such
claim.
(ff)
Foreign Corrupt Practices; Criminal Acts. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or
any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any
funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii)
made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any
provision of FCPA.
(gg)
Accountants. The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the
knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(hh)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each
Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on
the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ii)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(e) and 4.15 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future securities offering transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities (in material compliance with applicable laws) at various times during the period that the Securities are outstanding,
and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at
and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities
do not constitute a breach of any of the Transaction Documents.
(jj)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement
Agent, as to which no representation is made) has, (i) taken, directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii)
sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses
(ii) and (iii), compensation paid to the Placement Agent.
(kk)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any “Sanctions,” which
shall include but are not limited to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any Sanctions, including but not limited to U.S. sanctions administered by OFAC.
(ll)
Stock Option and Omnibus Incentive Plans. Each stock option granted by the Company under the Company’s stock option
or omnibus incentive plan, or as an inducement grant outside of such plan, was granted (i) in accordance with the terms of such plan,
or under its terms, respectively, and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date
such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option
or omnibus incentive plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or
practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or
other public announcement of material information regarding the Company or the Subsidiaries or their financial results or prospects.
(mm)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the U.S. Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
(nn)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, five
percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation
by the Federal Reserve.
(oo)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (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 Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.
(pp)
Information Technology. The Company’s, the Subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and
perform in all material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently
conducted. The Company, the Subsidiaries maintain commercially reasonable 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
all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored
thereon, and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or unauthorized
uses of or accesses to same, except as would not reasonably be expected to have a Material Adverse Effect. The Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices, and are presently in compliance
in all material respects with all applicable laws or statutes and all applicable 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, except for any such noncompliance that would not reasonably be expected to have a Material Adverse Effect.
(qq)
Regulatory. Except as described on Schedule 3.1 (qq), the Company and its Subsidiaries (i) are and at all times have been
in material compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal
of any product manufactured or distributed by the Company including, without limitation the Federal Food, Drug and Cosmetic Act (21 U.S.C.
§ 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and the Patient Protection
and Affordable Care Act of 2010, as amended by the Health Care and Education Affordability Reconciliation Act of 2010, the regulations
promulgated pursuant to such laws, and any successor government programs and comparable state laws, regulations relating to Good Clinical
Practices and Good Laboratory Practices and all other local, state, federal, national, supranational and foreign laws, manual provisions,
policies and administrative guidance relating to the regulation of the Company (collectively, the “Applicable Laws”);
(ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third party alleging or asserting
noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits, registrations
and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (iii) possess all material
Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations;
(iv) have not 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 Applicable Laws or Authorizations nor is any such claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action threatened; (v) have not received any written notice that any court or arbitrator or governmental or regulatory
authority has taken, is taking or intends to take, action to limit, suspend, materially modify or revoke any Authorizations nor is any
such limitation, suspension, modification or revocation threatened; (vi) have filed, obtained, maintained or submitted all material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws
or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and accurate on the date filed (or were corrected or supplemented by a subsequent submission); and (vii) are
not 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.
(rr)
Promotional Stock Activities. Neither the Company nor any Subsidiary of the Company and none of their respective officers,
directors, managers, affiliates or agents have engaged in any stock promotional activity that could give rise to a complaint, inquiry,
or trading suspension by the SEC alleging: (i) a violation of the anti-fraud provisions of the federal securities laws; (ii) violations
of the anti-touting provisions; (iii) improper “gun-jumping”; or (iv) promotion without proper disclosure of compensation.
3.2.
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which
it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof or thereof,
will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except:
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws).
(c)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(d)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports, the Registration Statement and the Preliminary Prospectus, and has been afforded:
(i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning
the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information
about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Such
Purchaser acknowledges and agrees that neither of the Placement Agent, nor any Affiliate of the Placement Agent, has provided such Purchaser
with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement
Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent
and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided
to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent, nor any of its Affiliates has
acted as a financial advisor or fiduciary to such Purchaser.
(e)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the
material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition
of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities
of the Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions
in the future.
(f)
No Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the
Purchaser and any other Purchaser and any of the Company’s stockholders as of the date hereof, regulating the management of the
Company, the stockholders’ rights in the Company, the transfer of shares in the Company, including any voting agreements, stockholder
agreements or any other similar agreement, even if its title is different or has any other relations or agreements with any of the Company’s
stockholders, directors or officers.
(g)
Brokers. Except as set forth in the Prospectus, no agent, broker, investment banker, person or firm acting in a similar
capacity on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee or any
other commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could have any
liabilities in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action taken
by the Purchaser in connection with the transactions contemplated by this Agreement.
(h)
Independent Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on
behalf of the Company to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
(i)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on
each date on which it exercises any Pre-Funded Warrants, it will be either (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act, or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on
the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, except as set forth in this Agreement, with respect to locating or borrowing shares
in order to effect Short Sales or similar transactions in the future.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1.
Legends.
(a) The
Shares, Pre-Funded Warrants and Pre-Funded Warrant Shares shall be issued free of legends.
(b) The
Shares and, if all or any portion of a Pre-Funded Warrant is exercised at a time when there is an effective registration statement to
cover the issuance of the Pre-Funded Warrant Shares or if the Pre-Funded Warrant is exercised via cashless exercise, the Pre-Funded Warrant
Shares shall be issued free of all restrictive legends. If at any time following the date hereof the Registration Statement (or any subsequent
registration statement registering the sale or resale of the Pre-Funded Warrant Shares) is not effective or is not otherwise available
for the initial sale by the Company of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares, the Company shall immediately
notify the holders of the Pre-Funded Warrants in writing that such registration statement is not then effective and thereafter shall promptly
notify such holders when the registration statement is effective again and available for the initial sale by the Company of the Shares,
the Pre-Funded Warrants or the Pre-Funded Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares in compliance
with applicable federal and state securities laws). The Company shall use commercially reasonable efforts to keep a registration statement
(including the Registration Statement) registering the issuance of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded
Warrants.
4.2.
[Reserved].
4.3.
Furnishing of Information; Public Information. Until the time that no Purchaser owns Securities, the Company covenants to
maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions
in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act, even if the Company is not then subject to the reporting requirements of the Exchange Act, except in the
event that the Company consummates (in each case on or after the date as of which the Purchasers may sell all of their Securities without
restriction or limitation pursuant to Rule 144) (a) any transaction or series of related transactions as a result of which any Person
(together with its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting
control of the Company; (b) a merger or reorganization of the Company with one or more other entities in which the Company is not the
surviving entity; or (c) a sale of all or substantially all of the assets of the Company, where the consummation of such transaction results
in the Company no longer subject to the reporting requirements of the Exchange Act.
4.4.
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes
of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other
transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.5.
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents
as exhibits thereto as deemed by Company Counsel, with the Commission within the time required by the Exchange Act. From and after the
issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public
information delivered to any of the Purchasers by the Company or any of the Subsidiaries or Affiliates, or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon
the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents,
employees or Affiliates, including without limitation, the Placement Agent, on the one hand, and any of the Purchasers or any of their
Affiliates on the other hand, with respect to the transactions contemplated hereby shall terminate and be of no further force or effect.
The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or applicable Trading Market, without the prior written consent
of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with
the Commission and (b) to the extent such disclosure is required by applicable law or Trading Market regulations, in which case the Company
shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.6.
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the
Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities
under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.7.
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.5, the Company covenants and agrees that neither it, nor any other
Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt
of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company
delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and
agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of the Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to the Company, any of the Subsidiaries or any of their respective officers,
directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such
notice file such material non-public information on with the Commission pursuant to a Current Report on Form 8-K. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.8.
Use of Proceeds. Except as set forth in the Preliminary Prospectus or the Prospectus, the Company shall use the net proceeds
from the sale of the Securities hereunder for working capital and general corporate purposes and shall not use such proceeds: (a) for
the satisfaction of any portion of the Company’s debt (other than payment of trade payables and accrued liabilities in the ordinary
course of the Company’s business and repayment of obligations outstanding as of the date of this Agreement and consistent with prior
practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation,
or (d) in violation of FCPA or OFAC regulations.
4.9.
Indemnification of Purchasers. Subject to the provisions of this Section 4.9, the Company will indemnify and hold each Purchaser
and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
caused by or based upon (a) any material breach of any of the representations or warranties made by the Company in this Agreement or in
the other Transaction Documents (b) any action instituted against a Purchaser Party in any capacity, or any of them or their respective
Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (except to the extent such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party that is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel to the
applicable Purchaser Party, a material conflict on any material issue between the position of the Company and the position of such Purchaser
Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without
the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the
extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required
by this Section 4.9 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and
when bills are received or are incurred; provided, that if any Purchaser Party is finally judicially determined not to be entitled to
indemnification or payment under this Section 4.9, such Purchaser Party shall promptly reimburse the Company for any payments that are
advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of
any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.10.
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue the Shares pursuant to this Agreement and the Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants.
4.11.
Listing of Common Stock. For as long as any Pre-Funded Warrants are outstanding and exercisable, the Company hereby agrees
to use commercially reasonable best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it
is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares and Pre-Funded Warrant
Shares on such Trading Market and promptly secure the listing of all of the Shares and Pre-Funded Warrant Shares on such Trading Market
to the extent required by the rules of such Trading Market; provided, however, that the Purchasers acknowledge that the Common Stock is
currently subject to delisting by the Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded
on any other Trading Market, it will then include in such application all of the Shares and Pre-Funded Warrant Shares, and will take such
other action as is necessary to cause all of the Shares and Pre-Funded Warrant Shares to be listed or quoted on such other Trading Market
as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common
Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws
or rules of the Trading Market. For so long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, the
Company agrees to use commercially reasonable efforts to maintain the eligibility of the Common Stock for electronic transfer through
the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to
the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.12.
Subsequent Equity Sales.
(a)
From the date hereof until thirty (30) days after the Closing Date, except as permitted pursuant Section 4.12(b), to neither the
Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares
of Common Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than filing
the final Prospectus and a registration statement on Form S-8 in connection with any employee benefit plan.
(b)
From the date hereof until ninety (90) days after the Closing Date, the Company shall be prohibited from effecting or entering
into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents
(or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other
price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security (other than in connection with a stock split or stock dividend or similar
event) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market
for the Common Stock, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line
of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined price regardless
of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently cancelled.
Notwithstanding the foregoing (including Section 4.12(a)), commencing five days following the Closing Date, the Company will be permitted
to make sales pursuant to that certain Sales Agreement, dated July 26, 2024, by and between the Company and the Placement Agent.
(c)
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate
Transaction shall be an Exempt Issuance.
4.13.
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Shares or otherwise.
4.14.
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.5. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.5,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement,
including the schedules hereto. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary,
the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will
not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described in Section 4.5, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.5 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the
Company to the Company or the Subsidiaries after the issuance of the initial press release as described in Section 4.5. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this
Agreement.
4.15.
Exercise Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants sets forth the totality of the procedures
required of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information, or instructions
shall be required of the Purchasers to exercise their Pre-Funded Warrants. Without limiting the preceding sentences, no ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
form be required in order to exercise the Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded Warrants and shall
deliver the Pre-Funded Warrant Shares in accordance with the terms, conditions, and time periods set forth in the Transaction Documents.
4.16.
[Reserved].
4.17.
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms.
If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to
seek specific performance of the terms of such Lock-Up Agreement.
ARTICLE V
MISCELLANEOUS
5.1.
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties,
if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2.
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise
notice delivered by a Purchaser). The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges
imposed by any governmental body, agency or official (other than income taxes) by reason of the issuance of Shares to the Purchasers.
5.3.
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Preliminary Prospectus,
and the Prospectus contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to
be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers that purchased at least 50.1% in interest of the Securities
based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver,
by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or at least 50.1%
in interest of such group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding
upon each Purchaser and holder of Securities and the Company. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K.
5.6.
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8.
Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.9 and this Section 5.8.
5.9.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If any party shall commence an suit, action or proceeding to enforce any provisions of the Transaction Documents, then, in addition
to the obligations of the Company under Section 4.9, the prevailing party in such suit, action or proceeding shall be reimbursed by the
non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such suit, action or proceeding.
5.10.
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities
for the applicable statue of limitations.
5.11.
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file, by other electronic signing created on an electronic platform (such as DocuSign) or by digital
signing (such as Adobe Sign), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such “.pdf” or other electronic or digital signature page were
an original thereof.
5.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13.
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights provided, however, that in the case of a rescission of an exercise
of a Pre-Funded Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
exercise notice concurrently (if such shares were delivered to the applicable Purchaser) with the return to such Purchaser of the aggregate
exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant
to such Purchaser’s Pre-Funded Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14.
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15.
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16.
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17.
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the
performance or nonperformance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through Sullivan & Worcester LLP, the legal counsel of the Placement Agent, and Sullivan & Worcester
LLP, as legal counsel of the Placement Agent, does not represent any of the Purchasers and only represents the Placement Agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18.
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the
Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and
other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.
5.19.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding
Trading Day.
5.20.
Currency. Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful
currency of the United States.
5.21.
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date Of this Agreement.
5.22.
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
| |
|
|
| CNS PHARMACEUTICALS, INC. |
| |
|
| By: |
|
|
| Name: |
|
Christopher S. Downs |
| Title: |
|
Chief Financial Officer |
Address for Notice:
2100 West Loop South Suite 900
Houston, TX 77027
Email: Cdowns@CNSPharma.com
With a copy to (which shall not constitute notice):
Cavas Pavri
ArentFox Schiff LLP
1717 K Street, NW
Washington, DC 20006
Email: cavas.pavri@afslaw.com
[PURCHASER SIGNATURE PAGES TO CNSP
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
___________________________________________
Name of Authorized
Signatory:
___________________________________________
Title of Authorized Signatory:
___________________________________________
Email Address of Authorized Signatory:
___________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
_______________________
DWAC for Shares:
Subscription Amount: $
Shares:__________________
Pre-Funded Warrant Shares: ___________ Beneficial Ownership Blocker
☐ 4.99% or ☐
9.99%
EIN Number: ____________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company
to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing
shall occur on the first (1st) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an
unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the
like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit A
Form of Lock-Up Agreement
(See attached)
Exhibit B
Form of Pre-Funded Warrant
(See attached)
Exhibit 99.1
CNS Pharmaceuticals Announces Pricing of $3
Million Registered Direct Offering of Common Stock Priced At-The-Market Under Nasdaq Rules
HOUSTON, October 23,
2024 /PRNewswire/ -- CNS Pharmaceuticals, Inc. (NASDAQ: CNSP) ("CNS" or the "Company"), a biopharmaceutical company
specializing in the development of novel treatments for primary and metastatic cancers in the brain and central nervous system, today
announced it has entered into securities purchase agreements with institutional investors for the purchase and sale of 17,647,060 shares
of common stock (or common stock equivalents in lieu thereof) pursuant to a registered direct offering priced at-the-market under Nasdaq
rules at a purchase price of $0.17 per share.
The closing of the offering
is expected to occur on or about October 24, 2024, subject to the satisfaction of customary closing conditions. The gross proceeds from
the offering are expected to be approximately $3 million before deducting placement agent fees and other offering expenses payable by
the Company. The Company intends to use the net proceeds from the offering for working capital and general corporate purposes.
A.G.P./Alliance Global
Partners is acting as sole placement agent for the offering.
The securities will be
issued in a registered direct offering pursuant to an effective shelf registration statement on Form S-3 (File No. 333-279285) previously
filed with the U.S. Securities and Exchange Commission (the "SEC"), under the Securities Act of 1933, as amended (the "Securities
Act"), and declared effective by the SEC on May 17, 2024. A prospectus supplement describing the terms of the offering may be obtained,
when available, on the SEC's website located at http://www.sec.gov, and may also be obtained from A.G.P./Alliance Global Partners, 590
Madison Avenue, 28th Floor, New York, NY 10022, or by telephone at (212) 624-2060, or by email at prospectus@allianceg.com.
This press release shall
not constitute an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any
sale of these securities in any state or other jurisdiction in which such offer, solicitation, or sale would be unlawful prior to the
registration or qualification under the securities laws of any such state or other jurisdiction.
About CNS Pharmaceuticals, Inc.
CNS Pharmaceuticals is a clinical-stage pharmaceutical
company developing a pipeline of anti-cancer drug candidates for the treatment of primary and metastatic cancers of the brain and central
nervous system. The Company's lead drug candidate, Berubicin, is a novel anthracycline and the first anthracycline to appear to cross
the blood-brain barrier. Berubicin is currently in development for the treatment of a number of serious brain and CNS oncology indications
including glioblastoma multiforme (GBM), an aggressive and incurable form of brain cancer.
For more information, please visit www.CNSPharma.com,
and connect with the Company on X, Facebook, and LinkedIn.
Forward-Looking Statements
Some of the statements in this press release are
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act
of 1934 and the Private Securities Litigation Reform Act of 1995, which involve risks and uncertainties. Forward-looking statements in
this press release include, without limitation, the timing for closing of the offering and the expected use of proceeds from the offering.
These statements relate to future events, future expectations, plans and prospects. Although CNS believes the expectations reflected in
such forward-looking statements are reasonable as of the date made, expectations may prove to have been materially different from the
results expressed or implied by such forward-looking statements. CNS has attempted to identify forward-looking statements by terminology
including ''believes,'' ''estimates,'' ''anticipates,'' ''expects,'' ''plans,'' ''projects,'' ''intends,'' ''potential,'' ''may,'' ''could,''
''might,'' ''will,'' ''should,'' ''approximately'' or other words that convey uncertainty of future events or outcomes to identify these
forward-looking statements. These statements are only predictions and involve known and unknown risks, uncertainties and other factors,
including those discussed under Item 1A. "Risk Factors" in CNS's most recently filed Form 10-K filed with the Securities and
Exchange Commission ("SEC") and updated from time to time in its Form 10-Q filings and in its other public filings with the
SEC. Any forward-looking statements contained in this press release speak only as of its date. CNS undertakes no obligation to update
any forward-looking statements contained in this press release to reflect events or circumstances occurring after its date or to reflect
the occurrence of unanticipated events.
CONTACTS:
Investor Relations Contact
JTC Team, LLC
Jenene Thomas
908-824-0775
CNSP@jtcir.com
v3.24.3
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- 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
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dei_PreCommencementTenderOffer |
| Namespace Prefix: |
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| Period Type: |
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| 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
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| Namespace Prefix: |
dei_ |
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| Period Type: |
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| 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
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-Section 12
-Subsection d1-1
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| Namespace Prefix: |
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| Balance Type: |
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| 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
-Number 240
-Section 14a
-Subsection 12
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dei_SolicitingMaterial |
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| Period Type: |
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| 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: |
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